Law, Politics, and Morality: European Perspectives II: On Knowledge and Adjudication of National and European Law [1 ed.] 9783428509454, 9783428109456

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Schriften zur Rechtstheorie Heft 215 / II

Law, Politics, and Morality: European Perspectives II On Knowledge and Adjudication of National and European Law

Edited by Jordi Ferrer Beltrán Maribel Narváez Mora

asdfghjk Duncker & Humblot · Berlin

FERRER BELTRÁN / NARVÁEZ MORA

Law, Politics, and Morality: European Perspectives II On Knowledge and Adjudication of National and European Law

Schriften zur Rechtstheorie Heft 215 / II

Law, Politics, and Morality: European Perspectives II On Knowledge and Adjudication of National and European Law

Edited by Jordi Ferrer Beltrán Maribel Narváez Mora

asdfghjk Duncker & Humblot · Berlin

Bibliographic information published by Die Deutsche Bibliothek Die Deutsche Bibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at .

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, elecrtonic or mechanical, without the expressed written consent of the publisher. # 2006 Duncker & Humblot GmbH, Berlin Typesetting: Klaus-Dieter Voigt, Berlin Printing: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0582-0472 ISBN 3-428-10945-7 Gedruckt auf alterungsbeständigem (säurefreiem) Papier ∞ entsprechend ISO 9706 *

Internet: http://www.duncker-humblot.de

Contents Jordi Ferrer Beltrán and Maribel Narváez Mora Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Isabel Turégano Mansilla Constitution and Democracy in the European Construction Process. Regarding Some Reflections by Jürgen Habermas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Giorgio Maniaci The Role of Rationality in Judicial Argumentation . . . . . . . . . . . . . . . . . . . . . . . .

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Ofer Raban Legislation, Adjudication and Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Véronique Champeil-Desplats Legal Reasoning and Plurality of Values: Axio-Teleological Conflicts of Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Isabel Lifante Vidal Interpretation and Judicial Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Gema Marcilla Córdoba Iura Novit Curia, Law Crisis, and the European Building Process . . . . . . . . . . . 115 Giulio Itzcovich Sovereignty, Legal Pluralism, and Fundamental Rights. Italian Jurisprudence and European Integration (1964–1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Josh Holmes Human Rights Protection in European Community Law: The Problem of Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Jordi Ferrer Beltrán Right to Proof and Rationality of Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . 175 Francesca Poggi Proving Intention – Some General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 About the Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

Introduction In the 18th and 19th centuries, traditional legal dogma considered the judge’s function as being to serve as the “bouche de la loi”, that is, one who mechanically applied the law, presuming, of course, that such an application was possible. Since then, however, many have been the voices raised and the schools of thought challenging this view, some even questioning whether it is possible or even desirable that the law be applied so mechanically. Today it is clear that the work done by judges and courts accounts for both legal advances and retrocession. All too often however, teaching and study of law is based on the premises of formal dogma. Discussion centres on what the law says, and less on the instruments enabling its application, such as legal argumentation and reasoning. The approach to the new legal and institutional challenges facing the European Union is not immune to this problem. Little public attention is paid to actual law emanating from EU institutions, and even less to its application. However, at least three issues of vital importance can easily be seen to originate in this field: (1) Does legal harmonisation among EU countries also mean harmonisation of criteria and forms of justification of judicial reasoning? (2) What is the relationship between each country’s internal laws and European law at the application stage? And (3) what is the relationship between the application of law by European-level legal bodies and national bodies, which may, for example, assume differing levels of protection of individual rights? These and other questions concerning application of the law in the European Union were the objective of a European congress, The Judiciary and its Role in the European Construction Process, held in Girona, Spain, from 14 to 16 November 2002. The congress was funded by the European Commission via the Human Potential Programme within the European Community’s 5th Framework Programme. It was part of the PhD Euroconferences in Legal Philosophy: Current Challenges to the European Legal Thought project. This book brings together the results of that congress, yet cannot be termed Proceedings, since the papers presented at the congress were later modified by the authors in light of the discussion. This introduction cannot provide an in-depth description of the content, much less a discussion. It will be restricted to a brief, orientative description of the various papers. The debate on the concept of the European Union and the Constitutional Treaty marks a turning point in the process of European construction. In the

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opening paper, Constitution and Democracy in the European Construction, Isabel Turégano probes the link between democracy and the Constitution in the European context. The article presents a range of challenges and difficulties from a number of perspectives. Sceptical views on the possibility of constructing a legitimated political union capable of guaranteeing rights are presented alongside consideration of paths which may facilitate this objective. The opposing arguments incorporate the main criticisms and proposals of Luigi Ferrajoli and Jürgen Habermas, including the latter’s call for a flexible yet solid model. When the application of the law is approached from the perspective of legal dogma an overly local interpretation may predominate. A number of the papers in this book make far-reaching theoretical contributions to the subject of legal reasoning. All of these analyse the possibilities of justification through interpretation of the law. They opt for a realistic and flexible approach in legal decisions on the basis of axiological pluralism and the requirements of specific situations; yet they are aware of the risk of deviation that this may entail in the exercise of power. This issue must be afforded priority status in the context of integration of the European Union’s legal systems; however, the pressing needs of European policy tend to neglect theoretical legal issues. In The Role of Rationality in Judicial Argumentation, Giorgio Maniaci analyses the notion of justification of the major premise of legal syllogism. To this end, he presents the conditions and demands of a “moderate relativism” which would confer rationality or objectivity on such justification. Under limited economic or temporal conditions it is possible to rationally justify a normative thesis or claim if this is supported by mutually consistent reasons based on theoretical and empirical premises accepted within the group or scientific community. Such reasons must give an answer to as many doubts and objections raised in the decision-making process as possible. Although this model, in striving to be realistic, does not accept the need for a profound or ideal justification it does nevertheless confer a theoretical role on this regulative ideal. In Legislation, Adjudication and Justification, Ofer Raban provides us with an incisive description of the importance of public justification in creation and application of the law. The requirement that legally equal cases be treated equally presupposes an underlying model of justification which draws a distinction between the exceptional and the arbitrary. The way in which certain features shared by members of a given category are associated with different treatment not only demands public justification for the legislative assumption but also becomes a central issue for application of the law. However, when interpreting the law it is not just a matter of appealing to the underlying justifications, understood as extra-legal justifications, but also of understanding the role that those elements play in conforming legal requirements as a whole. In terms of legal theory, bearing these issues in mind means highlighting the virtues and defects

Introduction

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of legal systems: they need to serve as flexible mechanisms for regulation of public life yet at the same time are shaped by particular moral conceptions. This latter issue, flexibility as both virtue and risk, is addressed by Véronique Champeil-Desplats in Legal Reasoning and Plurality of Values: Axio-teleological Conflicts of Norms. First, a type of normative conflict is presented: axio-teleological conflict. These are characterised as emerging in concreto, and being “partial-partial” type conflicts; further, they cannot be resolved by exclusive use of the usual meta-norms employed for resolution of antinomies and do not generally end in the invalidation of one of the challenging norms. Second, specific methods for resolution of these conflicts are examined: the “exclusive normative base model”, which entails one of the norms in conflict being set aside and resolution being based exclusively on the other, and a “plurality of normative bases model”, in which the resolution entails conciliation between the norms in conflict, each allowing a partial justification of the decision. A preference for this second model is based on the need to perpetuate the axiological plurality recognised in our constitutions. To act otherwise is to validate a “monism of values” which, in exchange for normative certainty, would impede a genuine recognition of plurality. However, as mentioned earlier, the author warns that such flexible adaptation to circumstances may open the door to arbitrariness. In Interpretation and Judicial Discretion, Isabel Lifante Vidal questions the classic division drawn in the dynamic dimension of the law between creation and application through an in-depth analysis of the concept of judicial discretion. If our definition of discretion is a technical discretion involving the application of norms to achieve certain ends or a political discretion for the implementation of certain policies, then it is inadmissible that administrative bodies can employ the first while the legislative power employs the second. Both classes of discretion, which entail different types of justification other than syllogistic application of law, require justification stemming from the factual circumstances of each case. The form in which power is regulated will determine the type of discretion being employed, rather than the type of authority making discretional decisions. The reassessment of the classic dichotomy between creation and application of law, on the one hand, and the questioning, on the other, of the postulates of theoretical positivism or formalism comprise a serious challenge to the Iura novit curia principle. This problem is addressed by Gema Marcilla in Iura Novit Curia, Law Crisis, and the European Building Process. To all the above, we must now add the additional complexity of European law, both from the quantitative (continued “overproduction of regulations”) and qualitative point of view, i. e. legislative hierarchies, internal application of European law, etc. The papers by Giulio Itzcovich and Josh Holmes also deal with the problems of coexistence and occasional collision between European law and the law of

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the Member States. In Sovereignty, Legal Pluralism, and Fundamental Rights, Itzcovich analyses the evolution of constitutional doctrine and jurisprudence in terms of the limitations of state sovereignty entailed by European law, with special attention to the case of Italy. Particularly interesting is the possibility of collision between European norms and the declaration of fundamental rights enshrined in state constitutions. The paper is a rigorous presentation of the “counter-limits doctrine”, to which the author attributes the advantage of leading to “constitutional dialogue” between the various actors of European construction (European Court of Justice, domestic constitutional courts, national governments, etc.). In Human Rights Protection in European Community Law: The Problem of Standards, Holmes takes a more general perspective of the problem of varying degrees of protection of human rights among EU Member States, and between these levels of protection afforded by internal constitutional jurisprudence and that of the European Court of Justice. It is clear that the problem of identification and application of fundamental rights does not end with their recognition in the various national constitutions, in the European Convention of Human Rights, or in the European Constitution. The fundamental problem for application is establishment of the standard of protection afforded to each right, the scope of its recognition. And this is not clearly established, when established at all, in our constitutional texts. Rather, it derives from the doctrine and jurisprudence developed by each legal system. Therefore, study of these standards and their convergence or divergence is especially important if we are to go beyond a mere description of the letter of the law. The final two articles address the problem of determining facts in the judicial process, that is, the problems of proof and justification of the judge’s or court’s decision in this regard. In the first article, the more general of the two, Right to Proof and Rationality of Judicial Decisions, Jordi Ferrer discusses and defends a normative proposal on the scope to be assigned to the “right to proof”, as part of the defendant’s right to defend himself. This article is, in fact, an application to a given fundamental right of the problem of the standards of protection of rights addressed by Holmes. In the final paper, Proving Intention. Some General Remarks, Francesca Poggi analyses the problems of proof in relation to what are known as “internal” or “psychological” facts. The difficulties attendant on determining the existence of a psychological fact – such as knowledge, voluntariness, the intention to cause harm, etc. – for application of a legal norm are evident. Poggi offers a brilliant analysis of these problems and argues for less rigid standards of justification than those required for what are known as “external” facts. Jordi Ferrer Beltrán (University of Girona)

Maribel Narváez Mora (University of Girona)

Constitution and Democracy in the European Construction Process Regarding Some Reflections by Jürgen Habermas Isabel Turégano Mansilla 1. Introduction The European construction process is at a decisive moment. Aware of the need to face the problems arising from the future enlargement and the deficit of legitimacy and transparency of its institutions, the European Union moves forward within the framework of the Nice Treaty after achieving a strong economic and monetary integration with weakly integrated national governments. The 2000 Nice Summit created a Convention composed of representatives from the governments and parliaments of the Member States, the European Commission, and the European Parliament to prepare the 2004 Intergovernmental Conference. The Convention was created by the Laeken European Council in December 2001 with the following basic objectives: the analysis of aspects concerning the role of Europe in the world; the ways to attract citizens towards the European project; the distribution of competences between the European Union and the States; the promotion of the foreign and defense policy; and the simplification of legal texts of the Union. The Council simply proposed as a possibility the drawing up of a future European Constitution; however, in the last months many European politicians and jurists – both inside and outside the Convention – have presented their proposals and projects for what they consider must be an actual founding charter for the enlarged political Europe. Although in a restricted sense we may talk of a “constitutional moment”1 in European politics, the constitutional debate taking place is very different from that on which the founding fathers of the American Constitution or the French revolutionaries embarked at the end of the eighteenth century. At that time, 1 In any case, in a much weaker sense than that employed by Bruce Ackerman as an expression of a more elevated form of politics in which people make their opinions known through considerable debate and mobilization. About this constitutional politics, as distinct and superior to ordinary legislative politics in Ackerman’s thought, vid. Bruce Ackerman, 1984, 1988, 1989, 1991 y 1998, y Bruce Ackerman y C. F. Rosenkrantz, 1991.

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they intended to outline the constitutional model that should serve the liberal objectives of the revolutionaries. The main discourse was a philosophical and legal-constitutional one about how to design a constitution that was a guarantee of the rights against the decisions of established powers and an instrument of social transformation. The ideology that inspired the origin of American constitutionalism was mainly that of a government limited by the aim of guarantee, whereas that of French constitutionalism was a rationalist philosophy according to which each generation of individuals has the responsibility of establishing the values and political goals that must influence the legal organization. Now, however, is not the time to outline a new constitutional model, but time to accomplish the democratic and guarantee-oriented goals of those first constitutional States, taking into consideration the economic, sociological, and political problems in the contemporary world. Those who claim the consolidation of the constitutionalization of the Union think that European political unity will allow the actual fulfilment of the achievements of the first constitutionalism concerning the private autonomy of individuals as well as of their political participation. The constitution is considered to be necessary so that the unity of the political action can be shaped in accordance with the democratic principle, which must provide its legitimacy and commit it to the realization of rights. In this respect, Luigi Ferrajoli has stated that “nowadays the paradigm of the rule of law can only be reestablished through the stipulation of a European Constitution, which can design again the totally chaotic and irrational system of the communitarian institutions and sources (a Parliament without legislative competences, a Council and a Commission with normative powers, out of any control, a Court of Justice with very limited competences) submitting, on the one hand, to the forms of political democracy and, on the other, to the rigid guarantee of the fundamental rights”2. The current crisis of the national State and, consequently, of the constitutional guarantee of the rights historically associated with it, can only be overcome, in the author’s opinion, if the seats of the guarantees of the rights are transferred to the new political and decision-making seats – that is, democratizing and submitting the supranational power to constitutional limits3. It is a fact that the phenomenon of economic globalization has reduced the power of the national States to make decisions; they observe how the financial and labor markets and industrial production develop beyond their frontiers and cause social effects which are uncontrollable at a national level4. And that 2

L. Ferrajoli, 1999, p. 115. Ibid. Ferrajoli insists on the idea that compromise with rights and democratic values requires the legal unification of Europe and the emanation of a European constitution in 1999, pp. 30–31. 4 Vid., for instance, J. R. Capella, 1997, chap. V, pp. 231 ff. 3

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weakening of the States takes place not only in social policy but also in monetary policy and in foreign and defense policy. At the same time, the international and supranational organizations, in which the democratic principle and the guarantees of rights are not sufficiently shaped, widen their space to take action. Both tendencies show a deficit of “constitutional State”5, which requires a progressive dissociation from the weakened national State. Guaranteeing the normative ideal of collective self-legislation, a moral prerequisite in the configuration of constitutionalism at its origin, implies the formation of institutions capable of taking action in supranational areas, and whose decisions are to be taken according to democratic and participatory conditions. Likewise, the guarantee of rights requires a change in the “constitutionalism seats”, in Ferrajoli’s words. Only those agencies, such as the European Union, which have real power to have an influence on the global system are able to contribute to the maintenance of the formal and substantive guarantees which have characterized the formation and development of constitutional States. 2. European Constitution and Constituent Power At the present moment, the legitimacy of the performance of the European institutions derives fundamentally from the actual democratic configuration of each of the Member States. This legitimation is enough if the Union is conceived as a mere confederation and its decisions as intergovernmental agreements or treaties. However, if the aim is to build a federal Europe, then it is necessary to reinforce the democratic principle, thereby institutionalizing the means and conditions for the formation of a citizens’ will at a European level and rendering decision-making processes more transparent. As opposed to the idea of a constitution that accomplishes public autonomy this way, it is argued that the lack of a homogeneous European people (demos) capable of a common will does not allow for the adoption of a constitution for Europe. This thesis remarks the relevance of the popular sovereignty principle in the idea of constitution, assuming – as done by the liberal revolutionary ideal in the origin of constitutionalism – that the constituent decision is the expression of a people’s will, who, considering themselves sovereign, acknowledge their legitimacy to decide on their own legal organization. The principle of popular sovereignty is a moral requirement derived from the principle of autonomy: the respect for the moral autonomy of each of the individuals implied in the decision about social or legal norms requires that decision to be the result of the collective deliberation and agreement. The incorporation of this normative ideal into a legal order makes it clear that the su5 So it has been called by the constitutionalists Pedro de Vega, 1998, pp. 13–56, and Javier Ruipérez, 2000, p. 36.

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preme power of the government does not correspond to established organs but to the people, conceived as a plurality of individuals; that is to say, that each of them has the right to participate in the formation of public will. This way, the formal recognition of popular sovereignty intends to place on the people the sovereignty that the nineteenth-century European Science of Public Law had attributed exclusively to the State6. Historically, the idea of popular sovereignty has been essential to account for the normativeness of the constitution, since it shows its dependence with respect to an external authority which determines the performance of public institutions. The constitution as a source of individual rights and public duties necessarily takes for granted the idea of popular sovereignty7. If the constitution is not conceived as a decision of jurists or political philosophers who intend to make rational truths effective, then we must agree on the central role played in its configuration by the democratic principle. In this sense, constitution and democracy are not incompatible but mutually necessary: the constitutionalization of rights does not imply an external limit to the making of decisions according to the principle of majorities, but the condition of possibility and guarantee of democracy itself. The mere formal recognition of popular sovereignty would be lacking in content if those procedures and rights which allow for the creation and manifestation of a unitarian popular will influencing the state action were not institutionalized simultaneously. However, although the euroskeptical thesis mentioned above highlights the relevance of the democratic principle in the idea of constitution, it presupposes a debatable concept of “people”, understanding it in a collective meaning incompatible with the plural character of the current European societies. The thesis can be criticized in two ways: it assumes that there must be a pactum associationis prior to the pactum subjectionis, and it presupposes a substantial conception of people. Some constitutionalist scholars argue for the need of a social agreement prior to the constitution by means of which the individuals agree to form an association whose form of government is to be decided in the constitutional act. With this social agreement, a new entity is created which is superior to each of the individuals and will be sovereign to decide about its political future. This entity, traditionally referred to as constituent power, is a reality which arises spontaneously and that is prior to and independent of law, and is in abeyance during the validity of the constitutional order8.

6

Vid. Vezio Crisafulli, 1985. F. Rubio Llorente, 1997, pp. 49, 51. 8 This is the conception of constituent power by Javier Ruipérez, 2000, who follows the thesis of Pedro de Vega, 1985. 7

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Assuming this concept of constituent power – referred to as “justification” of the constitution – it is thought to be impossible to devise a European constitution because of the lack of a social agreement at this level. In other words, it is argued that, provided the European demoi wish to keep their identity differentiated and do not intend to lose their individuality to form a single political entity, a European constitution will not be drawn up9. This skeptical thesis about the possibility of a constitution for the Union involves a controversial concept of constituent power. This is presented, in a sense we could call transcendent, as an entity of sociological nature which occasionally acts on law, producing certain consequences. The constituent power is conceived as a political fact whose object is a basic decision about the legal order which, from that moment, develops with a ratio of its own. However, if the democratic meaning provided by the constituent element to the constitutional order is to be preserved, it cannot be kept silent during its validity and give way to the sovereignty of law. The constituent power implies the requirement to institutionalize legally the creation of a unitarian popular will which can influence the political orientation of state powers and control their performance. In this respect, it persists in the constitutional order as long as such procedural and principle norms continue to be valid. This permanence implies a new concept of constituent power as immanent to the constitutional order. According to this, the demos does not make the constitution, but rather the constitution makes the demos. Thus, the immanent thesis of the constituent power involves the rejection of the collective identification of the people prior to and independent of the constitutional regulation of the democratic principle and rights. And this is so if the collective identity is understood as deriving from a prelegal social agreement based on individual autonomy, or, to a larger extent, if the identity is understood in a substantial sense. The identity that the constitutional State creates among the individuals is, according to Habermas, an “abstract and legally mediated between strangers” identity10. As opposed to a substantialist or organicist conception of the people based on a natural cultural homogeneity, the immanent thesis involves a procedural conception of popular sovereignty. Habermas has rejected the euroskeptics’ argument against the European constitution based on the thesis of the lack of a European people because of his ethnonational interpretation of popular sovereignty. According to this, the process of democratic decision involves the self-assertion of a nation in its uniqueness; that is, the expression of a spirit of the people of prelegal nature. According to this interpretation, what enables a collectivity to act is the cultural sub9 10

Javier Ruipérez, 2000, pp. 139–155. J. Habermas, 2001, p. 15.

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strate of a homogeneous people. The lack of this “homogeneous people” at a European level is seen as the factor impairing the constitutionalization of Europe, assuming that the creation of a common legal structure is not enough to include all the European citizens if they are not previously integrated in a substantial uniformity11. If, by contrast, the people are not believed to have a natural cultural substrate, the term “popular will”, as Benn and Peters claimed, can only have a meaning when referring to the result of a procedural practice in which some wills are opposed to others12. Habermas thinks that the democratic process itself can assume the function of social integration, given the fact of pluralism and difference that characterize contemporary societies. In his opinion, a prior consensus guaranteed by cultural homogeneity is not necessary because opinion- and will-formation democratically structured make a normative, rational agreement possible also between strangers13. It is in the actual constitutional practice where participants become a nation of citizens14. Taking an individualist conception of the political community as a starting point, it is only within the democratic process that a collective identity can and must be founded. A civic nation, as opposed to an ethnic nation, is not united by a previous substrate, but by a communicative context intersubjectively shared15. From this reinterpretation of the normative idea of collective self-legislation in terms of procedure, the principle of popular sovereignty is a concept dependent on constitutionalism. Although, as Ferrajoli argued16, the constitutional State is incompatible with the traditional concept of sovereignty – suprema potestas superiorem non recognoscens – in its procedural sense the notion of sovereignty has a meaning which is compatible with and dependent on the constitutional State. Sovereignty does not mean the power of a subject to impose its will on others, but rather means the mediation between reason and will by public discourse. It consists of a procedure of collective will-formation in which a variety of interests take part, which substitutes mutual understanding for power and rationally motivates majoritarian decisions17. This requires the legal institutionalization of the prerequisites for the formation of impartial legislative decisions.

11 12 13 14 15 16 17

Vid. J. Habermas, 1999a, pp. 107–135. S. I. Benn and R. S. Peters, 1959, p. 389. J. Habermas, 1999a, p. 116. Ibidem p. 119. J. Habermas, 1999b, p. 141. L. Ferrajoli, 1999, pp. 125–175. J. Habermas, 1996, pp. 473–477.

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3. Democracy and Rights The substantive principle of democracy, which contains both the idea of popular sovereignty and the idea of rights – whose guarantee turns the will of popular sovereignty into legitimate decisions – requires the normative framework of a constitutional State. There is no demos or democracy prior to or independent of the guarantee of constitutional rights. And, at the same time, these rights make sense with respect to democracy18. Habermas has argued for this idea when he refers to the relation between “private and public autonomy”. Individual autonomy is a prerequisite, not only for the defense of private interests against the democratic process, but also for the collective creation and development of a conception of justice. “The substance of human rights then resides in the formal conditions for the legal institutionalization of those discursive processes of opinion- and will-formation in which the sovereignty of the people assumes a binding character”19. Constitution is seen as “an interpretation and elaboration of a system of rights in which private and public autonomy are internally related (and must be simultaneously enhanced)”20. Taking into consideration the conditions of social and cultural pluralism in contemporary societies, constitution must not be conceived as a legal order that imposes a priori or lets the majority impose a certain form of life. Habermas adopts a “procedural understanding of the constitution” according to which “the constitution sets down political procedures according to which citizens can, in the exercise of their right to selfdetermination, successfully pursue the cooperative project of establishing just conditions of life”21. Rights of freedom will be guaranteed when the procedural conditions of the democratic genesis of laws are not only formal but also substantive. Besides, in Habermas’ conception, constitution is not only a prerequisite of the private autonomy but also of the social and political rights. He uses a concept of constitution according to which it is not just a “framework” that regulates the relationships between the State and the individuals, and in which these reserve a sphere of liberty for themselves. On the one hand, fundamental rights must include economic and social rights which establish necessary goals for public action22. On the other hand, political rights condition the opposite rela-

18 It is not a new idea that the rationale of democracy are ethical principles relating to equality and individual autonomy. 19 J. Habermas, 1996, chap. 3 (“A Reconstructive Approach to Law I: The System of Rights”), p. 104. 20 Ibidem chap. 6 (“Judiciary and Legislature”), p. 280. 21 Ibidem p. 263. 22 Ibid.

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tion between rulers and subjects, making individuals participate in public decision making; that is, making them have an influence on the constitutional order. The system of rights now in force in the European Union consists of implicit general principles derived from the constitutional common traditions of the Member States and the international treaties signed by them. The doctrine of the implicit principles has allowed the European Court of Justice to ensure the validity of rights in the European construction process. However, precisely because these are rights which can only be defined and guaranteed by the judges, and which must be common to the internal law of the different Member States, the system of rights of the Union can only include the classical liberal rights of private autonomy23. For years, the European institutions have proposed the drawing up of a charter of fundamental rights to remedy the flaws of the European system of protection of rights and, at the same time, to become the basis of a future European constitution. The Charter of Fundamental Rights of the European Union, solemnly proclaimed in December 2000, whose legal value will be decided upon in the 2004 Intergovernmental Conference, includes a wide catalogue of rights, within which not only rights of freedom and equality – which must be “respected” – are proclaimed, but also economic and social rights – which must be “observed and promoted” – and rights of political participation. Rubio Llorente has questioned the Charter’s potential to solve the real problems impairing the reinforcement of the Union, which naively intends to base a political reality on universal values. According to the author, the lack of a European social model becomes explicit in the fact that the actual protection of the “positive” rights, which the Charter includes as a novelty in respect of the existing system of rights, is still conditioned to the “statutes and practices” of the States24. According to this thesis, any declaration of rights endorsed in the framework of the European Union will not have a greater legal guarantee than the existing international declarations of fundamental rights until there is a real will on the part of the States to reinforce the political union. And, in that sense, the practical effectiveness of the rights will continue to depend on the States, regardless of the existence or nonexistence of a constitution. As opposed to this skeptical attitude, Habermas has considered that the constituent process itself can create the necessary empirical conditions to form a European identity beyond the national frontiers. When given the real premises for the formation of a will of the citizens integrated at a European level, it will be possible to establish political bodies (a European Parliament with proper competences, a government arising from the Commission, a second chamber 23 24

Vid. F. Rubio Llorente, 2002, pp. 4–11. Ibidem p. 11.

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that replaces the Council, and a European Court of Justice with increased competences) not limited to intergovernmental powers25. 4. Constitution and Citizenship Consequently, according to Habermas, constitution and citizenship are intertwined in a circular process. On the one hand, the constitution is necessary to institutionalize the legal conditions that allow for the formation of a civic solidarity among a plurality of different subjects. However, on the other hand, the process of constitution-formation itself must include the empirical circumstances necessary to have that artificial identity. As opposed to this association between constitution and citizenship, Ferrajoli argues for the overcoming of the limit of the citizenship so that the rights can be enjoyed at a supranational level. Both authors agree that, in the origin of the modern State, citizenship was the cause of inclusion and equality since it founded an artificial identity which surpassed the prior particularist and local conditions. At the same time, however, that national consciousness provided the necessary strength to found the state form from a cultural substrate that allowed for the self-assertion of a people collectively defined towards the inside and the outside. The national State has defended its limits, historically giving more importance to the status of citizen than to rights. Ferrajoli warns about the need to become aware that “the citizenship of our rich countries represents the last privilege of status, the last premodern remains of the personal differentiations, the last factor of exclusion and discrimination . . . the last unsolved contradiction with the proclaimed universality of the fundamental rights”26. As a consequence, Ferrajoli points out the need to dissociate the rights from the citizenship; that is, to acknowledge the suprastate character of the rights and the need to protect them outside and against the States27. The creation of a suprastate constitutionalism capable of attributing legal guarantees to the international declarations of rights does not depend, in the author’s opinion, on an improbable and undesirable suprastate government, but on judicial guarantees28. Habermas, however, links the guarantee of the rights to the formation of a democratic citizenship dependent on a legally ordered context. For Habermas, the possibility of a constitution is associated with the existence of a citizenship inseparable from the democratic process but whose effec25 26 27 28

J. Habermas, 1999b, p. 138. L. Ferrajoli, 1999, p. 32; J. Habermas, 1999c, pp. 81–105. L. Ferrajoli, 1999, p. 117. Ibidem p. 153.

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tive existence depends on a series of prior suppositions. The legal institutionalization of the citizens’ communication causes an abstract and legally-mediated, social integration between strangers. In this sense, the regulation of a communicative context to a European level can produce a European democratic citizenship which becomes the justification of a federal State. However, in order for this legally-founded, abstract citizenship to be effective, certain functional prerequisites must take place: the emergence of a European civil society, the construction of a public sphere at a European level, and the formation of a political culture which can be shared by all European citizens. In Habermas’ opinion, the constitutionalization of the European Union must mean the continuation of the process of artificial generation of a civic identity which began with the emergence of the national State. The civic solidarity which gave unity to the nation-State in its origins does not have to stop at its limits. Precisely the extension of constitutionalism to supranational areas would involve the expansion of this civic identity in a context of pluralism and diversity. The sociological premises necessary so that the future constitution is not just an intergovernmental treaty would develop in a circular process which begins in the constituent process itself. In the first place, the constituent process, to conclude in a referendum, means an opportunity of transnational communication which can cause a European civil society to emerge. Political parties, unions, civic or cultural associations, interest groups, and social movements would put their interests in common “crossing national frontiers”. In the second place, the constituent process would consolidate an infrastructure of transnational communications which would create a public sphere at the European level capable of projecting the social perception and opinions in the institutional deliberative sphere. Lastly, the extension of that public sphere will depend on its inclusion in a political culture, shared by all, in which Europeans show what they feel as normatively binding29. Consequently, Habermas is aware of the limits of the law. The legal means are absolutely necessary to implement political programs but are insufficient to produce democratic and guarantee-oriented transformations on their own. From his point of view, certain empirical circumstances, difficult to create if only legal mechanisms are used, are necessary. Law in general, and constitution in particular, depends on a public sphere and a political culture which it cannot produce on its own30. However, he believes that the constituent process can promote the formation of the necessary political context to give a more specific content to the project of consolidation of the Union.

29 30

J. Habermas, 2001, pp. 16–21. Vid. J. C. Velasco Arroyo, 2000, p. 84.

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5. European Constitution and Constitutional Jurisdiction The defense of the need for a European constitution, to organize its institutions democratically and to direct them to the guarantee of the fundamental rights, does not intend to be simply the defense of an abstraction based on universal normative principles incapable of solving real problems. In this sense, it would not just be the solution to the serious problems the political union is now facing31 but rather the institutionalization of the formal and substantive conditions to face them. Consequently, the most appropriate constitutional design is that which has a minimum unmodifiable nucleus of political participation and substantive rights32 and an open project of legal-constitutional organization. The constitution must not – and cannot – be the achievement of the political construction of Europe, but a structure of open principles which can be revised and interpreted in different ways, based on that minimum unmodifiable nucleus. This is the way Habermas completes his defense of the constitutionalization of Europe. He considers that the central political issue the constitution must address is the specification of the competences between federal, national, and regional institutions, and that this is a highly controversial issue that cannot be solved in a conclusive way. That is why he refers to his idea of a democratic constitution as a progressive attainment of a system of basic rights in changing historical circumstances33. Habermas argues for a dynamic understanding of the constitution as an unfinished project. The rule of law itself is a fallible enterprise in need of revision; it realizes, in changing circumstances, a same system of rights; it gives the discourse principle legal shape as a principle of democracy34. Law depends on an intersubjective social practice which, in a given context, understands, in a way, the system of rights. That pre-understanding of the society, which guides not only the constant task of accomplishing the rights but also of interpreting and applying the legal norms, constitutes the paradigm of law. As opposed to 31 Without any intention of exhaustiveness, we could mention as serious problems the necessary redefinition of the system of government facing the future enlargement; the deficit of legitimacy of the European Parliament; the distribution of competences between executive power, two-chamber communitarian legislature, and national legislatures; competences of subnational actors; foreign and defense policy; or, redistributive social policy. 32 J. C. Bayón has defended a “weak constitutionalism” according to which it is only a small part of “rights preserve” capable of being drawn up as rules that must have unconditional priority over statutes (vid. J. C. Bayón, 2000, pp. 65–94). 33 J. Habermas, 2001, p. 22. 34 J. Habermas, 1996, chap. 8 (“Civil Society and the Political Public Sphere”), p. 384 and chap. 3 (“A Reconstructive Approach to Law I: The System of Rights”), pp. 126–131.

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the paradigms of the bourgeois formal law and welfare-state “materialized” law which have realized the system of rights historically, Habermas proposes the procedural or discursive paradigm of law which remarks the unavoidable connection between private and public autonomy. The problem with this dynamic concept of constitution is the tension it produces between a universalist moral element and a historicist element, tension that can be found throughout Habermas’ thinking. The historicist element conditions Habermas’ thesis about the unmodifiability of rights as prerequisite for the production of legitimated law. Though citizens acting as constituent legislatures in exercise of their political autonomy cannot affect the system of rights which constitute this autonomy, they can articulate them in different ways depending on historical circumstances. We can ask ourselves, as García Amado has, what is left of these rights if only historical interpretations conditioned by context are possible; and, above all, which contents would stop a constitutional text being interpretable as a particular and contextually dependent reading and guarantee of that system of rights – and the corresponding legal order understandable as illegitimate and invalid35. If we accept a theory of justice which contains principles establishing basic rights, these cannot be made to depend on changing historical circumstances. It is a widespread opinion that the acceptance of such a conception of justice compels to accept the “guarantee-oriented” model involved in constitutionalism36. However, there is no agreement about the kind of constitutionalism required. It is possible, in the first place, to understand the constitution in a Kelsenian sense as a procedure, a form, which only obliges the legislator to respect organizational rules. In this case, the rights are basically conceived as rights of political participation and no discrimination (interpreted in a mere procedural sense). The constitution is not a norm of protection of values justified in themselves, but a way of preserving the process of democratic participation and reinforcement of the representation. This is the concept of constitution in the debated thesis by John Hart Ely37. In the second place, the constitution can be understood as a material norm – in the sense that it is not limited to organizational matters – as a source of law which obliges the legislator and imposes substantive limits on him. The constitutional rights take on prior values and oblige public institutions, thus determining the validity of their acts. They are “substantial” rights in so far as they do not impose formal obligations (concerning the who and the how) but concern the content of the decision (what is valid to decide). This is the concept of constitutionalism Luigi Ferrajoli mentioned above. 35 36 37

J. A. García Amado, 1993, p. 243. Vid., among others, J. J. Moreso, 2000, p. 40 y J. C. Bayón, 2000, pp. 65–70. J. H. Ely, 1980.

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Both models of constitutionalism present different ways of justifying the judicial review of constitutionality. The procedural model of constitution justifies a kind of constitutional adjudication that is orientated towards the protection of rights of political participation, to the preservation of the democratic form of government. The restriction of the judiciary competence to the guarantee of these rights safeguards its impartiality as far as the substantive matters – essentially controversial as opposed to procedural – are removed. The authority of constitutional adjudication derives from the people’s right to self-legislation, mainly expressed through the legislature. The model of constitution as a substantive norm reinforces the role of the judiciary, providing it with a function of guarantee of the rights of the individuals against the unlawful act of any public institution. The judge is not just bound to the law as a formally existing norm, but bound to it as it is a valid norm, that is to say, coherent in its meaning with the constitution according to the judge’s own consideration. As Luis Prieto points out, this change in the concept of constitution makes the diffuse judicial review the most appropriate model to guarantee the material content of the constitution. The judges must take into account the constitution over the statute, making sure before applying a legal solution that this is in accordance with the constitution38. Habermas’ conception of constitutional jurisdiction is halfway between the described models. From its “procedural understanding of the constitution”, he considers that the function of the Constitutional Court consists of examining “the contents of disputed norms primarily in connection with the communicative presuppositions and procedural conditions of the legislative process”39. In this respect, the legitimacy of constitutional review is linked to the democratic principle, which Habermas interprets in a deliberative sense: the Constitutional Court controls the communicative presuppositions of a practice of self-legislation, which is to be developed in the interplay between the parliamentary willformation institutionalized in legal procedures and the political opinion-formation along informal channels of political communication40. But this procedural justification of constitutional review differs from the Kelsenian model in two relevant aspects: the substantive content of procedural rights, and the link between constitutional adjudication and the discourse of the application of norms. On the one hand, Habermas does not agree with Ely that this procedural model of constitutional review relieves adjudication of any orientation to principles with moral origins. The concept of democratic procedure itself is based on 38 39 40

L. Prieto, 2001. J. Habermas, 1996, chap. 6, p. 264. Ibidem pp. 274–275.

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the equalitarian principle with an evident substantive content. The Constitutional Court keeps watch over just that system of rights that makes internal relations between citizens’ private and public autonomy equally possible41. On the other hand, Habermas’ conception of the relation between judiciary and legislature derives from two premises. First, the author conceives constitutional norms which recognize rights as principles, and not as values; that is, they have, as any other norm, a deontological and not a teleological sense42. Second, Habermas adopts Klaus Günther’s distinction between discourse of justification of norms and discourse of application of norms, one regarding the production of valid norms and the other regarding the appropriate reference of the norm to a particular case43. The consequence of both premises is that constitutional review does not change the hierarchical order between legislature and judiciary. It is not the Constitutional Court’s competence to carry out an abstract review of statutes but to apply those which it presupposes valid. His discourse is not that of justification or legitimation – which concerns solely the legislature – but of application. In adjudicating cases, the legitimating reasons available are treated by the Constitutional Court as already given to it. The discourse of application cannot substitute the political discourse. However, the Court must ensure that these reasons have actually existed; that is, it must examine whether the legislative decision turned on reasons that can be publicly defended. The theory of discourse maintains that the process of lawmaking must take place deliberatively justifying decisions on reasons. So, it conceives that the Court acts within the limits of its authority, not when it decides about

41

Ibidem pp. 264, 266, 263. Habermas considers that collision between norms of principle does not require a discretionary or arbitrary weighing of the extent shared values or preferences competing for priority have to be optimized, preferring some over others in a relative sense. By contrast, principles are general norms that oblige their addressees in an absolute form without exception; that is, that have an unconditioned and universal validity, which can be maintained only under the assumption that they form a coherent system. Solution of problems of principles’ collision lies in examining prima facie applicable norms in order to find out which one is most suitable to the case at hand (ibidem pp. 253–261). This conception of principles is related to Habermas’ concept of normative system: a legal system becomes a coherent system only in the discourse of application, not in the discourse of justification. The judge reconstructs the norm from the peculiarities of the case at hand, guided by the ideas of consistency and system. The correct interpretation of the case will allow the determination of the applicable norm. In this respect, Habermas rejects the notion of principles as the “optimizing prescriptions” of R. Alexy, 1993. 43 “Only if a valid norm proves to be the single appropriate one in the case at hand does that norm ground a singular judgement that can claim to be right. That a norm is prima facie valid means merely that it has been impartially justified; only its impartial application leads to a valid decision about a case. The validity of the general norm does not yet guarantee justice in the individual case” (J. Habermas, 1996, chap. 5, p. 217). 42

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the political reasons available, but when it ensures that a reasoned justification has existed44. Within these limits of legitimated constitutional adjudication, Habermas defends a strong judicial activism. “If one understands the constitution as an interpretation and elaboration of a system of rights in which private and public autonomy are internally related (and must be simultaneously enhanced), then a rather bold constitutional adjudication is even required in cases that concern the implementation of democratic procedure and the deliberative form of political opinion- and will-formation”45. Habermas thinks that the European Court of Justice should have a greater influence in the European Constitution. It should take a relevant role in the interpretation of the constitution, taking into account the regulatory complexity of an enlarged and socially diversified Union. His dynamic understanding of the constitution compels him to defend an “ongoing constitutional interpretation” which is a “common undertaking” of the legal community, but on which the Constitutional Court could play the role of a “tutor”46. This concept of constitution and constitutional review is an eclectic one that gives priority to popular sovereignty over rights, but without renouncing them. Rights are conceived as an internal component or condition of possibility of the democratic principle, undefinable outside of or independent of the procedure of collective self-legislation. The trouble with this concept lies in determining which substantive rights are prerequisite for the democratic procedure. Once we have admitted the normative character of the primacy of democracy, it is difficult to determine which rights are essential to justify it – do they include rights to individual freedom? and social rights? In any case, the substantive nature of rights related to procedure converts them into controversial matters that take neutrality away from the judiciary47. Assuming that a “limited indetermination”48 affects equally the interpretation of any constitutional right, we must accord with the thesis of discretionary power of judges, which compels us to reflect upon the legitimacy of judicial review. With respect to a diffused control, though it could be considered the most appropriate model to make normativeness of the constitution effective, it 44 J. Habermas, 1996, cap. 6, aparts. II and III, pp. 253–286. C. S. Nino also thought that one of the reasons to legitimate judicial review of constitutionality was that of considering judges as controllers of the democratic process (vid. C. S. Nino, 1992, cap. III, apart. D), p. 696). 45 J. Habermas, 1996, cap. 6, pp. 279–280. 46 J. Habermas, 2001, p. 22, and 1996, pp. 129, 224, 280. 47 Disagreement about which are just procedures, or what the scope of participatory rights is, is underlined by Jeremy Waldron, 1993, p. 39. 48 Vid. J. J. Moreso, 1997, chap. V, pp. 183 ff.

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cannot imply surreptitiously an inversion of the hierarchical order between the legislature and the judiciary. Public deliberation and equal participation of parties concerned is superior in the democratic process ruled by the majoritarian principle – though still too far from the deliberative ideal – rather than in the courts. That is why it seems more appropriate to demand of judges a prima facie attitude of deference towards democratic legislature in “hard cases”49. Political decisions are incumbent on the legislature. It should not be interrupted by a judicial activity which limits the interpretative possibilities of the text. In this sense, it would be satisfactory to use those instruments that avoid making it the judges who determine definitively the valid interpretative decision and, also, promote the continuous institutional debate. Such techniques as sending the statute back to the legislature not only prevent the judges from having the final say about the scope and content of rights but also urge the legislature to deliberate again about the decision it adopted and to engage in a dialogue with the judiciary50. Legitimacy of judicial review – whether from ordinary jurisdiction or a Constitutional Court – will depend, then, on its contribution to the maintenance of public deliberative culture. Judicial review will be legitimated when it serves to promote the deliberative practice of offering and requiring reasons in the political process51. The drawing up of the competences of the European Court of Justice must aim at that ideal, making it take part in a collective practice in which institutions cooperate to converge the political and legal processes to the deliberative model. References Ackerman, Bruce (1984), “The Storrs Lectures: Discovering the Constitution”, Yale Law Journal, vol. 93, revised and abridged in J. Elster y R. Slagstad (1988), pp. 153–193. There is a cast. trans. by G. L.Alonso, in B. Ackerman, La política del diálogo liberal, Gedisa, Barcelona, 1999, pp. 165–215. – (1989), “Constitutional Politics/Constitutional Law”, Yale Law Journal, vol. 99. – (1991), We the People. Foundations, The Belknap Press of Harvard University Press, Cambridge, Mass., 1991. – (1998), We the People. Transformations, The Belknap Press of Harvard University Press, Cambridge, Mass., 1998. Ackerman, Bruce et al. (1991), Fundamentos y alcance del control judicial de constitucionalidad, Centro de Estudios Constitucionales, Madrid. 49 J. J. Moreso, 2000, p. 45; C. S. Nino, 1992, pp. 685–687; and Michael Walzer, 1981, p. 397, among others, defend this “self-restraint”. 50 Roberto Gargarella, 1996, pp. 174–177. 51 Vid. V. Ferreres, 1997.

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Ackerman, Bruce/Rosenkrantz, Carlos (1991), “Tres concepciones de la democracia constitucional”, in B. Ackerman et al. (1991). Alexy, R. (1993), Teoría de los derechos fundamentales, cast. trans. by E. Garzón Valdés, Centro de Estudios Constitucionales, Madrid. Bayon, J. C. (2000), “Derechos, democracia y constitución”, in Discusiones, n. 1. Benn, S. I./Peters, R. S. (1959), Los principios sociales y el Estado democrático, cast. trans. by R. J. Vernengo, Editorial Universitaria de Buenos Aires, Buenos Aires, 1984. Capella, J. R. (1997), Fruta prohibida. Una aproximación histórico-teorética al estudio del derecho y del Estado, Trotta, Madrid. Crisafulli, Vezio (1985), “La sovranità popolare nella costituzione italiana”, in Stato, popolo, goberno. Illusioni e delusión costituzionali, Giuffrè, Milano. Elster, Jon/Slagstad, Rune (eds.) (1988), Constitutionalism and Democracy, Cambridge University Press, Cambridge. Ely, J. H. (1980), Democracy and Distrust. A Theory of Judicial Review, Harvard University Press, Cambridge, Mass. Ferrajoli, L. (1999), Derechos y garantías. La ley del más débil, preface by Perfecto Andrés Ibáñez, cast. trans by P. Andrés Ibáñez and Andrea Greppi, Trotta, Madrid. Ferreres, V. (1997), Justicia constitucional y democracia, Centro de Estudios Políticos y Constitucionales, Madrid. Garcia Amado, J. A. (1993), “La filosofía del derecho de Jürgen Habermas”, Doxa, n. 13. Gargarella, Roberto (1996), La justicia frente al gobierno, Ariel, Barcelona. Habermas, Jürgen (1996), Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. by William Rehg, Polity Press, Cambridge, Mass. – (1999a), “Inclusión: ¿Incorporación o integración? Sobre la relación entre nación, Estado de derecho y democracia”, cast. trans. by G. Vilar Roca, in La inclusión del otro. Estudios de teoría política, Paidós, Barcelona. – (1999b), “¿Necesita Europa una constitución? Observaciones a Dieter Grimm”, in La inclusión del otro, cit. – (1999c), “El Estado nacional europeo. Sobre el pasado y el futuro de la soberanía y de la ciudadanía”, in La inclusión del otro, cit. – (2001), “Por qué Europa necesita una constitución”, in New Left Review, n. 11, noviembre/diciembre. Moreso, J. J. (1997), La indeterminación del derecho y la interpretación de la constitución, Centro de Estudios Políticos y Constitucionales, Madrid. – (2000), “Derechos y justicia procesal imperfecta”, in Discusiones, n. 1. Nino, C. S. (1992), Fundamentos de derecho constitucional, Astrea, Buenos Aires.

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Prieto, Luis (2001), “Constitución y Parlamento”, en Parlamento y Constitución, n. 5, pp. 1–30. Rubio Llorente, F. (1997), “La constitución como fuente de derecho”, in La forma del poder. Estudios sobre la constitución, Centro de Estudios Constitucionales, Madrid. – (2002), “La Carta Europea de los derechos”, in Claves de Razón Práctica, n. 122, mayo. Ruiperez, Javier (2000), La “constitución europea” y la teoría del poder constituyente, Editorial Biblioteca Nueva, Madrid. Vega, Pedro de (1985), La reforma constitucional y la problemática del poder constituyente, Tecnos, Madrid. – (1998), “Mundialización y Derecho constitucional: La crisis del principio democrático en el constitucionalismo actual”, Revista de Estudios Políticos, n. 100. Velasco Arroyo, J. C. (2000), La teoría discursiva del derecho. Sistema jurídico y democracia en Habermas, Boletín Oficial del Estado, Centro de Estudios Políticos y Constitucionales, Madrid. Waldron, Jeremy (1993), “A Right-Based Critique of Constitutional Rights”, Oxford Journal of Legal Studies, 13. Walzer, Michael (1981), “Philosophy and Democracy”, in Political Theory, vol. 9, n. 3.

The Role of Rationality in Judicial Argumentation* Giorgio Maniaci Therefore, by seeking justification for our actions in immutable principles outside ourselves, we try to relieve ourselves of the burden of responsibility Alf Ross, On Law and Justice (§ 59)

1. Introduction So far, we do not know which structure the European legal system will have in the future; whether we will have a European Constitution, a European civil and/or criminal code. However, whatever the structure of the European legal system will be, it is probable that European judges will decide and solve controversies through legal standards as rules and explicit principles enacted by an authority or through (an interpretation of) implicit principles reconstructed from explicit rules. Since, as I think, the argumentation made by European judges has, and will have, the same structure of judicial argumentation as in civil law systems, I would like to try to answer in this paper a question: Should, and in which sense, judicial argumentation, particularly the external justification of the major premise of legal syllogism, be ‘rationally justified’, i. e. objectively founded? In order to determine if the (external) justification of the major premise of legal syllogism should be rationally justified, it is necessary to answer three questions: that is, (a) What is meant by external justification of the major premise of legal syllogism? (b) How and why can we reconstruct the judicial argumentation as a practical syllogism, that is, a form of practical reasoning and not of theoretical reasoning? and (c) How and why should normative statements be rationally justified? In the second, third, and fourth sections I will answer the third question, while in the fifth section I will answer the other two questions. * I am very grateful to Francesco Biondo, Bruno Celano, Aldo Schiavello, and Vittorio Villa for their very kind and helpful criticisms of an earlier draft of this article. I do wish to thank all the participants in the Conference “The Judiciary and the European Construction Process”, held in Girona from 14 to 16 November 2002, for their encouragement and stimulating objections.

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2. How and Why Normative Statements Should Be ‘Objectively Founded’ In this essay, I shall support a metaethical conception which we can call ‘moderate relativism’. According to such a conception, a normative thesis is ‘objectively founded’ if, and only if, a competent member1 of a community is convinced that this normative thesis is right when the argumentation advanced in support of it accomplishes the hypothetical conditions (rules) established by a rational argumentative procedure – in other words, when the advanced argumentation is part of a rational discourse. Such a conception is a form of relativism or projectivism because it does not share the thesis accepted by another metaethical theory called ‘moral realism’, according to which there are facts (at least partially) independent of our beliefs and preferences that can tell us what is morally wrong and what is morally right. According to relativism or projectivism, on the other hand, value-judgements are expressions of preferences or choices of individuals. Such a conception is a moderate form of relativism or projectivism because we should take into consideration only rational preferences, instead of preferences tout-court2. The most important and difficult task is to define the concept of ‘rational discourse’. We can say that a rational discourse is a discourse where the participants claim a theoretical or practical thesis and adduce justifications, objections, and criticisms in order to determine which thesis is correct or valid, valuing only the strength of the reasons advanced3. What do we mean by that? We may say, on the basis of a provisional definition, that a discourse is rational when the thesis advanced is supported by mutually consistent reasons, founded on theoretical and empirical premises accepted as true within the group or the scientific community, and when these reasons give a satisfactory answer to doubts and objections which are raised, or that could be raised, by other participants in the discourse4. 1 By ‘competent member’ I mean an adult person who has a standard linguistic competence and who does not have psychiatric handicaps. 2 Many authors share the idea that it is necessary to develop a theory which goes beyond moral realism and radical or extreme relativism. Cf. J. C. Bayon, 1991; J. C. Bayon, 2002; P. Comanducci, 1992, Ch. I, who uses the term ‘emotivismo moderato’; N. D. MacCormick, 1994, Ch. X; A. Schiavello, 2001; F. Viola, 2001; V. Villa, 2001. 3 See E. Diciotti, 1999a, p. 74. 4 Cf. again E. Diciotti, 1999a, p. 98. This definition of ‘rational discourse’ is the result of a rationalisation and a partial synthesis of procedural rules elaborated by Robert Alexy. It is a partial synthesis because it takes account of all rules that could be considered really formal as, for example, the principle of consistency, and does not take account of those rules that dissimulate normative principles as, for example, Hare’s principle of universalizability. It is a rationalisation because many rules elaborated by Alexy are redundant and overlap one another. Cf. R. Alexy, 1998, pp. 149 ff. About different versions or stages of the principle of universalizability, particularly a

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The main question is to determine when a reply (or an answer) can be judged satisfactory (or acceptable). We can claim that a reply is acceptable when it fulfils two requirements: that is, (a) a requirement of logical entailment (the premises of the argument ought to entail the conclusion); and, (b) a requirement of sufficiency (the premises of the argument ought to provide sufficient support for the conclusion)5. The notion of logically correct reply is well known. The conclusion should follow logically from the premises affirmed. A logical fallacy might depend on, for instance, irrelevancy of the premises. A premise q, according to which ‘Foetuses are persons’, is relevant to support the conclusion p, according to which ‘Abortion is a homicide’, when the premise q is part of a set of premises S, according to which ‘No one must be killed’, ‘To abort means interrupting a pregnancy’, etc., from which p (‘Abortion is a homicide’) follows logically. The premise ‘Children are wonderful’ can be reasonable, but it is not directly relevant to support the conclusion, according to which ‘Abortion is a homicide’, from the premise ‘No one must be killed’6. The notion of insufficient answer (or argumentation) is more complex. If we do not outline the specific types of discourse or communicative situation under which an answer is given, it will not be possible to determine a priori when a reply can be considered sufficient. The concept of ‘rational discourse’ presupposes a discourse community, because every question or objection arises from a community. We can imagine two kinds of rational discourse: first, a rational speech which is engaged under ideal conditions; and second, a rational speech which is engaged under economical and temporal limited conditions. Ideal conditions are conditions that no one can ever reach during his/her life, like an intelligence or a memory without limitations, or unending economical resources. The second ones are normal conditions in which human beings solve normative problems. An argumentation advanced in support of a practical thesis, which is part of a rational discourse under ideal conditions, gives a sufficient reply when it is built as an inference from a set of ultimate premises. I mean premises which are not themselves provable, confirmable, or justifiable in terms of further or ulterior reasons without falling into a circular reasoning. “At this point we reach the bedrock of the value preferences which inform our reasoning but formal one and a substantial one, cf. J. L. Mackie, 1981, Ch. IV and B. Celano, 1994, pp. 544–545. About the principle of universalizability see, among others, three classics of the twentieth century: R. M. Hare, 1952; R. M. Hare, 1963, and J. Habermas, 1985. 5 J. A. Blair and R. Johnson, 1987, pp. 53–54. 6 An interesting distinction between formal fallacies (which depend on a strict violation of rules of syllogism) and informal ones (fallacies of relevance and fallacies of ambiguity) is sketched by J. Mackie, “Fallacies”, quoted by E. Diciotti, 1999a, p. 104, n. 138.

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which are not demonstrable by it”7. Under an ideal speech situation we need not put further criteria for a definition of a ‘sufficient reply’, because we haven’t any economical or temporal limitation. Under a ‘limited condition speech’ a reply is sufficient when it gives an answer to as many objections and criticisms adduced, or that can be adduced, as possible. Why we say as many objections as possible? Because under economical and temporal limited conditions it is rational to find out strategies for restraining the amount of objections and criticisms to which a speaker must give an answer. The end of the strategy directed to restraining the amount of objections is to accomplish what we can call the principle of efficiency of argumentation. In order to explain the rationale of such a principle of efficiency of argumentation I should say something more about the notion of rationality. Rationality is one of the most interesting and difficult notions to define. In this paper, I cannot discuss in depth all the questions that may arise from a definition of rationality. What I can say is that I would like to support a conception of rationality that is realistic, or context-sensitive, and formal. Briefly, a formal (or Humean) conception of (practical) rationality, even if moderate or sophisticated, is a conception according to which ‘to be rational means to choose the right means to an end that a person really wants to achieve’. As I will explain in the next section, when I mention the problem of autonomy, the ends which one really wants to achieve are those which depend on autonomous preferences8. 7 Cf. N. D. MacCormick, 1994, pp. 105–106 and 265. “If I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am inclined to say: ‘This is simply what I do’ ”, L. Wittgenstein, 1958, § 217. 8 To defend a formal or Humean, even if sophisticated, conception of rationality means to reject a substantial conception of rationality, sometimes called rationality of ends, according to which for someone to be rational is not only like to find out the correct means to pursue his/her own interests or ends, whatever they may be, but also to pursue the correct ends or values, i. e. the needs or interests that people universally have in common – such as health, normal functioning of the body, human companionship, or affection. Such a substantial theory of rationality is sometimes justified through a ‘teleological ethics’ and the underlying functional theory of human being, according to which people have some desires, needs, and volitions because of their nature. For a being to be human is like to have some dispositions and needs. In my opinion, such a theory is very ambiguous. First, it may be interpreted as an empirical theory saying that there are some constraints to what a human being can desire or may want, because you will never see a human being whose principal or exclusive ends are his/her death, his/her pain, or the loss of some of his/her abilities, for instance intelligence, memory, sight, body strength, and so on. Some ends, desires, needs are not chosen and human beings are naturally brought to follow them. Such a theory, so interpreted, is a plausible attempt at explaining human nature, an empirical theory that can be tested against facts, because if we find a human being whose deepest and rational (in the formal sense) desire is to suffer pain and to feel guilty, the

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Also, I would like to support a realistic or context-sensitive conception of rationality because “the rationally appropriate procedure in problem solving is to strive for the best resolution achievable in the light of the available data”. In other words, “the crux of the matter is that rationality [as Rescher clearly explains that] is not a matter of absolute optimisation, but of circumstantial optimisation”. Circumstantial optimisation means an “optimisation relative to constraints”, that is, doing the best we can in the prevailing circumstances. “The point is that it lies in the nature of things that we must exercise our rationality amidst conditions of imperfect information”9; because in the real world, where ideal circumstances are not available, we have to elaborate a practicable conception of rationality. We have to oppose a realistic conception of rationality to an ideal conception of rationality according to which an agent is rational, and expresses rational preferences, when he/she resolves a practical problem taking into account all the relevant data and arguments, that is possible when he/she has no temporal, intellectual, or economical limitations. According to such a realistic conception10, the rationality of an argumentation depends on the balance of two conflicting principles or dimensions. “An theory will be falsified. Anyway, according to the sophisticated formal theory of rationality, accepted in this paper, desires and preferences can be considered irrational only on the basis of different reasons: for instance, when they are inconsistent or expressions of a psychiatric pathology; or when they are shaped by blind and irrelevant causal factors, for instance, ‘adaptive preference formation’ (or sour grapes) or ‘wishful thinking’. See J. Elster, 1983, pp. 15 ff. and next section. Furthermore, a teleological ethics is generally interpreted in another way. After writing a personal, more or less original, list of needs, desires, and preferences that most human beings are supposed to have in common, some philosophers would judge the minority of people whose desires and volitions are different as abnormal human beings who have lost, or corrupted, their nature and that are irrational. It is clear that, according to this second interpretation, a ‘teleological ethics’ (and a fortiori the rationality of ends) becomes a form of moral realism, a teleological one, according to which every human being has, must have, a determinate telos as a necessary part of human flourishing. What is true is that “nella stragrande maggioranza dei casi la definizione della natura umana in termini funzionali è servita e serve tuttora a dare il sigillo dei fatti, della necessità naturale ad assunti normativi . . . che costituiscono espressione di concezioni etiche particolari . . . i termini ‘anormale’ e ‘patologico’ sono stati e sono nella stragrande maggioranza dei casi veicolo di pregiudizi . . . che non accettano di presentarsi come tali”. This argumentation and the quotation are taken from B. Celano, 1994, p. 577. Rescher, for example, defends an anti-Humean or substantial conception of rationality. See N. Rescher, 1988, Ch. 6. About irrational desires see also S. Nathanson, 1985, Ch. 7–8–9. 9 N. Rescher, 1988, pp. 22, 29, 24. “This is the general argument for satisficing. It applies . . . to all . . . practical matters where there is a conflict between the need to invest time or money getting information and the need to spend time or money using the information one has got”. See J. Elster, 1983, p. 18. 10 According to such a realistic conception of rationality, another property of a normative argumentation is that it is a matter of degrees. For a justification to be rational is something different from a geometrical figure to have three or four sides, because we can distinguish justifications that are more or less rational.

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account of rationality must focus not only on the method by which decisions and judgements are made, but also on the probable results of the action being considered”11. The ‘result criterion’ is taken into account by the principle of efficiency of argumentation. According to this principle, a normative justification, most of the time, comes down to a deliberation, a decision that we have to make under economical and temporal limited resources. A deliberation is rational if it reaches the wanted or desired results; because, most of the time, the more information we get, the more arguments we test, the higher the risk of not reaching some wanted ends. From the other point of view, according to the traditional theory of rationality, the more reasons support a thesis, the more rationally justified the thesis is; the more objections or criticisms are taken into account against a normative thesis, the more rationally justified the thesis. The latter principle may be called that of the best justification. Central to the dimension of the ‘best justification’ are some rules of rational argumentative procedure, that is, the principles of non-contradiction, of formal justice (to treat like cases alike), and so on12. As I have said before, the rationality of an argumentation depends, partially, on the weighing and balancing of these two conflicting principles, that is, the principle of the best justification and that of efficiency. Take an example. Imagine that Humbert is in a burning building. It is perfectly rational that “he ought to not spend too much time considering which of several possible exits he ought to use. If he engages in too much deliberation about this he will actually decrease his chances of escaping safely”13. It is evident that in urgent situations there is no time to make a three-day analysis of arguments pro and con, even if we have to recognise that to satisfy the principle of efficiency leads us to sacrifice the principle of the best justification. Humbert has neither all the relevant information sufficient to know which is the best exit to escape the fire nor the knowledge of how long it will take him to look for and find the information sufficient to know which is the best exit to escape the fire. In this situation it is rational to decide by trusting to instincts. Furthermore, his deliberation has a low degree of justification14. One conclusion is this: if it is not rational to elaborate an ideal or optimal notion of ‘rationality’, it is not rational to adopt an ideal notion of ‘rational 11

S. Nathanson, 1985, p. 38. It is clear, in fact, that the concepts both of logically correct argumentation and of a sufficient one are based on the principle of formal justice, according to which ‘Every speaker who applies a predicate F to an object a must be prepared to apply F to every other object which is like a in all relevant respects’. 13 S. Nathanson, 1985, p. 40. 14 About other situations in which it is not worthwhile to spend much time in giving reasons, as, for example, decisions on trivial matters, see S. Nathanson, 1985, pp. 40 ff. 12

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discourse’, for it does not make sense to oblige someone to follow some procedural or argumentative constraints (for example, to be omniscient) that he/she can never reach. It would be a disaster. The same conclusion is valid for all the procedural theories of practical justification that elaborate a conception of objectivity (and/or moral correctness, it depends on preferences) perfectly symmetrical to an ideal notion of rationality. I mean (so-called) ‘ideal procedure theories’, according to which a preference is right if, and only if, it is expressed by someone who is under the ideal conditions imposed by the theory15, whose paradigmatic case is that of ideal observer theory, according to which an action X is wrong if, and only if, one, who is omniscient, omnipercipient, disinterested or impartial, etc., would disapprove of X.16 The acceptance of a realistic conception of rationality explains why it is not possible to offer a definition of rational argumentation, engaged under limited conditions, generally or abstractly valid, a definition which determines exactly when a reply to criticisms and objections is considered sufficient. The definition of ‘acceptable reply’, and a fortiori of rational discourse, is context-sensitive. Which context do I mean?

15 There are many authors who use some version of an ‘ideal procedure theory’ in order to elaborate a theory of legal or/and moral justification. All of them recognise that ideal procedural conditions are not achievable during real argumentations. Furthermore, their solutions and replies (to this problem) are not satisfactory. Some acknowledge that rational procedural requirements can be accomplished only partially or in an imperfect way, then that procedural requirements are to be fulfilled as far as possible or till the end of the day. Such an answer, without further explanations, is unsatisfactory, because it does not say when and for which reason it is possible to limit the amount of objections that a participant can oppose. On the other hand, some authors, such as Habermas, are perfectly aware that a rational discourse engaged under temporal and economical limited conditions needs some “institutional requirements” in order to regulate the beginning and the end of the speech, to guaranty the relevance of the arguments, etc. Habermas is aware too that such requirements accomplish some ends that are presupposed in every speech situation (to fulfil a concrete result). Furthermore, Habermas thinks that such institutional requirements are not part of the rules of rational discourse. For the first group of authors see J. L. Coleman and B. Leiter, 1995; R. M. Dworkin, 1982, Ch. IV and X; N. D. MacCormick, 1994, Ch. X; J. J. Moreso, El reino de los derechos y la objetivitad de la moral, unpublished, pp. 18–19. For the second group see J. Habermas, 1985, pp. 102–103; E. Diciotti, 1999a, Ch. I. 16 The term ‘ideal procedure theories’ is borrowed from Bruno Celano, even if the author means the term ‘ideal’ in a different meaning from mine. ‘Ideal’ is meant by Celano – and, I suppose, by analytic moral philosophers as well – as conditions or requirements that are considered positively worthwhile to pursue or morally relevant. On the other hand, one of the central aspects of this essay is the separation between ‘ideal conditions’, I say conditions, as an unending memory, that human beings can never reach, and ‘hypothetical conditions’. About ‘ideal procedure theories’ and ‘ideal observer theory’ see B. Celano, 1992; G. Harman, 1977, Ch. III; R. Brandt, 1979, Ch. 12. About the risks and wrongs of considering an ideal model as a normative model of real discourses see A. Pintore, 1996, pp. 216–218.

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To determine when an argumentation, engaged under limited conditions, has a sufficient degree of rationality – that is, when it gives a reply to a sufficient number of criticisms and objections – depends on many context-dependent variables. I mean the entire set of empirical and normative assumptions of the community which determines the amount of economical and temporal resources available, the degree of normative acceptability of a thesis, how many economical resources it is worthwhile to use in this giving-reasons procedure, how important the deliberation at issue is, and so on17. If we cannot elaborate a definition of ‘rational speech under limited conditions’ context-independent, we will have as many definitions of it as how ever many speech situations we encounter. For example, it is clear that in urgent situations, as, for instance, in the case of Humbert in a burning building, the principle of best justification will be sacrificed in order to accomplish the principle of efficiency of argumentation. On the other hand, there are many speech situations in which the principle of efficiency can have a lower weight and the principle of best justification a higher one: for example, I say, in the argumentation engaged by an assembly which discusses the approval of the new constitution of a State or, secondly, engaged by a Parliament discussing an important constitutional reform or, finally, engaged by a Constitutional Court in order to discuss the constitutional legitimacy of a new statute. 3. The Sense and the Limits of a Rational Argumentative Procedure As I have claimed before, according to a moderate relativist metaethics, normative statements are, in a weak sense, ‘objectively founded’ when they are rationally justified. I have also said that a normative statement is rationally justified, under economical and temporal limited conditions, if, and only if, it is supported by mutually consistent reasons, founded on theoretical and empirical premises accepted as true within the group or the scientific community, and when these reasons give a logically correct answer to as many doubts and objections raised, or that could be raised, by other participants in the discourse as possible. Such a definition of rational discourse presupposes two assumptions. First, that it is really important to distinguish a ‘persuasive justification’ from a ‘rational justification’. Second, such a notion of rational justification cannot, 17 It is important to evaluate the degree of acceptability of criticisms and objections because it is reasonable to think that in an argumentation engaged under economical and temporal limitations the more degree of disagreement there is about an issue, the more the necessity to take into account the criticisms and objections advanced against it.

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nevertheless, be descriptive, but it is normative, even if in a weak sense. Let me explain why. Some analytic theorists18 talk about three senses of the term ‘justification’. In a weak and descriptive sense ‘to justify’ means to put forward whatever reason in support of a normative thesis; for example, ‘Mrs. Haze has a right to do x under conditions z’. According to another sense, strong and descriptive, ‘to justify’ means to adduce persuasive reasons within a determinate audience. In the third sense, strong and value-laden, ‘to justify’ means to put forward ‘good reasons’ in support of a normative thesis. It is worthwhile to remark that a certain discourse must fulfil some minimal requirements of rationality to be called a ‘justification’. A discourse completely inconsistent cannot be considered a rational justification, but what is more, it cannot be considered a meaningful discourse at all. The activity of attribution of meaning to statements or actions presupposes the attribution of a minimal rationality. If the group S has a language, it must possess some minimal criteria of truth and logic – for example, the law of non-contradiction. Without fulfilling, minimally, these requirements, we would have no grounds for attributing them a language, thoughts, or beliefs19. In the second sense, ‘to justify’ means to adduce reasons which are considered persuasive by a determinate audience. We are dealing with a theoretical judgement whose end is to describe the truth of certain facts, particularly beliefs and evaluative attitudes20. Such a theoretical judgement can be ex-post, as 18 Cf., for example, P. Comanducci, 1992, pp. 56–58; R. Guastini, 1986, pp. 173– 174 and R. Guastini, 1989, pp. 205–206. 19 Cf. D. Davidson, 1980, Ch. 12 and passim; E. Diciotti, 1999a, Ch. I.; J. Elster, 1983, Ch. I, § 2; R. Guastini, 1989, p. 210 and S. Lukes, 1977, p. 210. 20 I cannot discuss here the controversial question of whether a theoretical judgement, about beliefs and attitudes, is (may be or should be) value-free. What I can say is that every interpretation of human facts, as discourses, actions, and social practices, is an abductive reasoning. In other words, there are different hypotheses about the meaning of a discourse or of a social practice which are, most of the time, (more or less) coherent with the set of actions or statements. The choice of a single interpretation can depend on a clarification by the author or the speaker, while it is necessarily guided by the interpreter’s conceptual schemes and value-judgements if the author is silent. There are different argumentations which support the thesis according to which there are, generally, different interpretations (or hypotheses about the meaning) of a discourse or of social practice. One such argument is that an interpretative activity does not concern single statements or actions out of a context, but complex facts, as novels, symphonies, or social practices. And such sets of sentences or actions contain, generally, some incoherences and indeterminacies. If we think that attribution of a meaning involves, necessarily, solving incoherences or indeterminacies, so ‘interpretation’ involves the elaboration of a theory or a hypothesis about the purpose of the practise. Such a theory should interpret (that is, elaborate hierarchies and fill the gaps among) the ends and values of the participants through some second-order valuejudgements elaborated by the interpreter. Cf. B. Celano, 1994, pp. 294 ff.; B. T. Ram-

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when someone describes that an audience has been persuaded about a thesis; or, it can be a priori, as when someone foresees that a certain thesis will be, probably, accepted by an audience. In the third sense, to ‘justify’ means to adduce good reasons, namely, reasons considered persuasive by the speaker on the basis of a value-judgement21. If someone says that a normative thesis is ‘justified’ in this third sense, that means that he/she himself is convinced that the arguments adduced in supporting that thesis are persuasive. It is a practical judgement, not a theoretical one. The first assumption of such a metaethical conception is this: it is very important to separate a ‘persuasive justification’ from a ‘rational justification’ – where the term ‘justification’ is meant either in the second sense or in the third sense. Why is that? A rational justification is a discourse in which someone puts forward rational or valid reasons in support of a normative thesis, that is, reasons whose validity or rationality is for the most part (but not completely) independent of the fact that the thesis is considered right or wrong, on the basis of a value-judgement, by himself/herself or by his/her community.22 I have said ‘for the most part’ because there are limits beyond which we cannot separate a rational justification from a persuasive justification any more. The point is that only if we can separate (within certain limits) a persuasive speech from a rational speech can we talk about a moderate conception of relativism. In the realm of moderate relativism, it is necessary that a speaker can verify if other participants are rationally justified when they affirm that abortion is wrong independently of what the speaker thinks about abortion. In the realm of moderate relativism, it is possible that someone is convinced that abor-

berg, 1989, pp. 93–94; V. Villa, 1993, particularly pp. 237–238; V. Villa, 1998, pp. 260–261 and V. Villa, 1999. 21 It is important to remark that the definition of the third sense of ‘justification’ given by Guastini is ambiguous and inadequate. The expression ‘good arguments’ (‘argomenti buoni o fondati’) used by Guastini can be interpreted either as arguments considered persuasive by someone, on a value-judgement, or as valid or correct arguments, in a logical or argumentative sense. For example, the term ‘fondato’, if predicated on reasons or arguments, is traditionally linked to the idea of validity of argumentation, i. e. to the idea of an argument considered correct according to a rational, argumentative procedure (that interpretation is suggested by Letizia Gianformaggio, 1986, p. 159). Furthermore, the discourse advanced by Guastini is not, taken as a whole, ambiguous. The ‘good arguments’ (‘buoni argomenti’) are not, according to Guastini, valid arguments in the logical or rational sense, but arguments considered persuasive by someone. In fact, if the goodness of an argument depended on logic instead of a value-judgement, it would not make sense to qualify the third sense of ‘justification’ strong and normative. 22 Diciotti, too, distinguishes two senses according to which a justification can be persuasive: the objective sense and the subjective one. A justification is ‘objectively persuasive’ when someone thinks that it should be accepted on the basis of a rational justification. See E. Diciotti, 1999a, pp. 80 ff.

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tion is wrong, even if he thinks that the reasons and replies advanced by other participants in support of such a thesis are not perfectly rational. Furthermore, we need to answer two other questions: Why is the notion of rational discourse a normative one? Why is it normative in a weak sense? There are two reasons that support the normative character of such a rational discourse. First, why must somebody be rational or adduce rational arguments? Why must one be informed about all relevant available facts? Why must he/she not contradict himself/herself and reply to as many criticisms as possible?23. The answer to these questions cannot be supported in a neutral or value-free way24. The rational procedure is not neutral not because it dissimulates some normative principles, as the ‘veil of ignorance’ in Rawls’ theory or Alexy’s universalizability principle. Even if we take a formal and ideal notion of ‘rational discourse’, that is, an ideal condition speech, such a discourse, even if we need no compromises because of economical or temporal limitations, should be founded (at least partially) on a normative basis. The acceptation of such a norm leads us to the problem of the justification of the entire procedure. The answer to this question is really important because it allows us to distinguish between procedural theories of practical justification which are realist and procedural theories of practical justification which are relativist. According to realist theories, the procedure is “uno strumento esclusivamente finalizzato a ‘lucidare lo specchio’ ”25, namely, a means necessary to make visible a moral truth that exists and is knowable (at least partially) independently of the procedure. The analogy generally used is that of colour perception. Colours are secondary qualities, that is, the fact that an object is red depends on determinate properties in the surface of the object and on some properties (of the sensory apparatus) of the perceiver. Then something is red if it 23 This question is connected with a well-known objection that we can call, borrowing this term from Celano, objection of hypotheticity (ipoteticità), advanced against theories of ‘hypothetical or ideal procedure’. By ‘hypothetical or ideal procedure theories’ I mean theories according to which, as we have seen before, a preference is right if, and only if, it is expressed by someone who is under ideal or hypothetical conditions imposed by the theory itself. It is surely clear that we can interpret the hypothetical or ideal conditions as procedural requirements that an argumentation has to follow – for example, to take account of all relevant facts; or as requirements that an ideal or hypothetical observer has to have – for example, to be omniscient. The objection of hypotheticity asks why someone should care about the approval or disapproval of such a hypothetical or ideal observer, that is, why someone should be different from himself/herself or should elaborate argumentations different from those that he/she is used to elaborating. See B. Celano, 1994, pp. 538 ff. 24 We do not have to confuse the fact that both the notion of rationality and that of rational procedure are really formal or without substantial contamination (accusation advanced against Habermas or Rawls) with the fact that they are neutral. 25 Cf. A. Pintore, 1996, pp. 249–250.

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looks red to a human observer in standard lighting conditions. Just as I will only see things in their true colours if I have a properly functioning colour vision and I am viewing the object under suitable conditions, so my moral feelings are only reliable if I am in an appropriate moral state and I am making a moral judgement in suitable conditions. Then an argumentative procedure would cease to remove all the distorting factors that do not allow us to see the moral truth of some statements or to feel the correct moral experiences. The analogy with colour perception is interesting26, but overlooks two important points. First, it is not clear what content we can give to such notions as moral ‘appropriate state’ and ‘suitable circumstance’, while there is comparatively little dispute about what colours things are, what constitutes such ideal lighting conditions, and generally how and which distortions can affect the normal colour perception; furthermore, in the moral realm it is really controversial what is to count as distortion, what is an ideal condition, and so on. Second, when some realists try to give an answer to these questions they always fail, because they end up embracing (what looks like) a version of an ideal observer theory (according to which an action is right if it would elicit approval by a fully informed, impartial, benevolent, and sympathetic observer) which is unacceptable for two reasons. Such a ‘realist ideal procedure’ contains both formal requirements (as, for instance, to be fully informed) that cannot, or it is indeterminate whether they can, lead to any substantial result – for example, to feel the moral experience according to which slavery or cruelty are wrong – and substantial requirements (to be benevolent or impartial) that dissimulate normative principles (take care of others’ welfare and good) considered, by intuition, morally right27. 26 The analogy with colour perception is interesting because it shows us an important fact which is perfectly compatible with a moderate relativist metaethics. It is conceivable that human sciences, as, for example, moral psychology or neurobiology, explain some moral disagreements by supposing that some people have a kind of moral blindness, resulting either from a sort of genetic defect or a failure in their upbringing – as, for example, violence or not enough love in the earliest years. In that case, we would deal with a theory about moral development and human nature. See G. Harman, 1977, p. 46 and what I will say further. 27 For a version of such a theory see D. McNaughton, 1988, Chapter IV and P. Pettit, 2001. On one hand, the latter, surprisingly, says that the reality of objective values would break down if we failed to identify which conditions of perturbation or distortion explain why someone does not prefer what is (supposed to be) objectively valuable or desirable. On the other hand, he accepts that such non-ideal factors (of distortion) are those whose “identification as grounds for dismissing discrepant responses would maximize non collusive agreement on what is desirable, and what not” or those which “people will see . . . as obstacles or limitations that undermine the significance of their desires or non desires as indices of desirability” (p. 268). Such ideas can be interpreted in two ways. According to the first interpretation, Pettit seems to say that such distorting factors (for instance the presence of opponents) are those

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Even if I cannot go deeply into the question of the foundation28 of rules of a rational argumentative procedure, I would like to share the idea (suggested by Alexy) according to which its ultimate justification, according to a relativist metaethics, should be founded on the basis of different arguments. For example, some rules, such as the law of non-contradiction, have a transcendental character29, while other rules are founded on normative assumptions, such as the rule according to which the speaker must justify a thesis as much as possible. Such a norm, according to which a speaker must follow the rules of a rational procedure, is, on one hand, supported by an empirical theory of moral development, a theory which tries to explain how and why value-judgements are born and die, i. e. how and why we hold and revise some preferences or desires. I mean a theory according to which one’s preferences and wants might be (and often are) shaped by distorting mechanisms, for example, because they depend on conforming to his/her economical and social context or, for instance, to his/her land tradition or parents’ ideologies. Such a norm pursues, on the other hand, (not only but also) the value of autonomy. The end of rational procedure is that we must detach ourselves from whose elimination (for example through the murder of opponents) has success in moral practices, that is, those whose absence dismisses discrepant responses. According to the second interpretation, Pettit seems to accept a circular definition, i. e. the possibility that distorting factors are those whose absence will produce a result (an attitude, a preference) considered (independently) valuable or desirable. 28 In other words, neither the transcendental argument nor the pragmatic-universal argument à la Habermas can justify all the rules of a rational discourse, but only the basic ones. It is true that most rules (but not all of them) of a rational discourse would be significant for those who decided to participate in the language-game of practical reasoning. My thesis is a middle way between Habermas’ thesis, according to which every speaker attaches to his utterances an implicit claim to intelligibility, veracity, correctness, or truth, and the thesis (that Alexy attributes to Hare) according to which even the basic norms of rational speech are significant only for those who decided to participate in it. Cf. R. Alexy, 1998, pp. 101 and 142–148. The latter thesis is, for example, shared by MacCormick who says that “Consistency and coherence . . . are possibilities for us in our practical acting, reasoning, and deciding . . . we have a choice, to be rational or not . . .”. See N. D. MacCormick, 1994, p. 269. 29 An assumption is meant to be transcendental when it is necessarily presupposed in a reasoning oriented to give an answer either to a theoretical or a practical problem. In other words, every reasoning which tries to demonstrate the falsity or invalidity of such an assumption necessarily presupposes it. As we have seen before, without presupposing, minimally, such transcendental requirements we would have no grounds for attributing a language, thoughts, or beliefs. See Aristotele, 2000, Book IV, Ch. 3–4, 1005a18–1009a5; S. Lukes, 1977, pp. 207–213; N. Rescher, 1988, Ch. V, and other authors quoted at the nt. 20. It is interesting to remark that, according to Rescher, we can sometimes tolerate some inconsistencies. Except for beliefs and value-judgements which are implicitly inconsistent, that is, when the inconsistency is not yet recognised, we can tolerate some local explicit inconsistencies, that is, the fact that the body of our knowledge or our large-scale theories may contain some contradictory beliefs, which are accepted both as true, because there are good theoretical arguments and empirical evidence in support of both.

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our initial perspective on life and the world, because objectivity involves stepping back from our initial preferences and desires, striving to get as much freedom as possible from the psychological and economical surroundings that one happens to have. Paraphrasing John Stuart Mill we can say that a person whose preferences are his own – are the expression of his own nature, as it has been modified by his own culture – is said to be rational. One whose preferences are not his own is not rational, no more than a steam-engine is rational30. But, what does it mean that one’s preferences are his own? Furthermore, even if the concept of autonomy is as important as it is controversial, I can neither face nor discuss, in this essay, this complex subject31. So far, I have affirmed that there are two reasons that support the normative (even if weak) character of such a rational discourse. The first reason is that it is not possible to answer the question ‘Why must someone be rational?’ in a value-free way. Such a problem is named neutrality of the procedure. The second reason concerns another property that a rational discourse has, if it has been engaged under economical and temporal limited conditions. We can say that such a notion becomes ‘more normative’, because the separation between a rational justification and a persuasive justification becomes thinner when a speech is engaged under limited conditions. We have seen how and why it is correct to reject an ideal model of rational discourse. Furthermore, if

30

J. S. Mill, 1991, p. 76. A ‘prima facie’ acceptable definition of autonomy, even if a vague one, is given by Jon Elster, according to whom a desire or a preference is autonomous when it is formed in the right way, that is, when a preference is not determined by blind and irrelevant causal factors: for instance ‘adaptive preference formation’ (or sour grapes), ‘preference change by framing’, ‘wishful thinking’, ‘inferential error’. This definition has two properties: first, the concept of autonomy, as that of rationality, is not valuefree. Furthermore, for a desire to be autonomous it is not likely to be (morally) right or persuasive. Elster’s conception shows how and why the notion of autonomy (and of rationality) is a normative one, even if in a weak sense. Only a conception of autonomy (and of rationality) that is weakly normative allows us to distinguish two questions: the first one is whether a preference is persuasive or morally right; the second one is whether it has been held in the right (rational) way. The latter question concerns the origin or the justification of the judgement; the former, its moral rightness. See J. Elster, 1983, pp. 15 ff. A theory very close to that of Elster (and which might be used in explaining Elster’s notions of ‘blind and irrelevant factors’) is Brandt’s theory. According to Richard Brandt, a desire is irrational when it would not survive cognitive psychotherapy. The point of such a theory is that the whole process of confronting some artificial or exaggerated desires with a coherent hypothesis (well-founded on theoretical and empirical assumptions) concerning their (irrational) psychological genesis would extinguish them. Particularly, Brandt quotes a list of four examples, neither mutually exclusive nor exhaustive, of irrational desires, very close to that of Elster: (a) desires depending on false beliefs; (b) artificial desires, that is, desires depending on parents’ or teachers’ conditioning; (c) desires or preferences depending on generalisations from untypical examples; and, finally, (d) exaggerated valences produced by early deprivation. See R. Brandt, 1979, Ch. VI. 31

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we accept a realistic model of rational discourse, we need to make a compromise with the principle of efficiency of argumentation. Even if the rules of the procedure are really formal, the validity of reasons adduced in support of a normative thesis is only for the most part (but not completely) independent of the fact that the thesis is considered right or wrong on the basis of a valuejudgement made by the community. Why is that? A normative statement is rationally justified, under economical and temporal limited conditions, if, and only if, it is supported by mutually consistent reasons, founded on theoretical and empirical premises accepted as true within the group or the scientific community, and when these reasons give a logically correct answer to as many doubts and objections raised, or that could be raised, by other participants in the discourse as possible. For to determine if an argumentation gives a (logically correct) answer to a sufficient amount of objections, under a certain discursive situation, depends on a balancing of two procedural values. As we have seen before, an evaluative preference, affirmed in a discussion, is as rational as the method (quality, extension, genesis) of its justification. Furthermore, the more positive results – that is, the ends or purposes that one wants – are reached, the more rational the procedure. Then the distinction between a rational justification and a persuasive justification becomes a matter of degrees and remains valid only against a background of common values. The separation becomes gradual because the more resources are available, the more rational a speech engaged under economical and temporal limited conditions – that is, by participants who have neither a superhuman memory nor intelligence. Then the separation between a rational justification and a persuasive justification is as more possible as more resources are available. It is easier to distinguish a rational justification from a not-perfectly rational one in a discussion or justification, for example, engaged by a Constitutional Assembly in technologically developed societies than, for example, in a discussion engaged by a court of first instance. Also, the distinction is possible only against a background of common values. Only if (most of the judges, lawyers, and legal theorists of) a legal community shares some substantial values is it possible to establish when an argumentation or a discussion engaged by (or within) a Supreme or Constitutional Court has an acceptable degree of rationality, i. e. gives a (logically correct) reply to a sufficient amount of objections or criticisms. 4. The Indeterminacy’s Objection In order to elaborate a satisfactory definition of a rational argumentative procedure, I have, indirectly, tried to give a reply to three classic objections raised against such a procedure. The first objection, that of circularity, does not con-

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cern our conception of rational procedure, but only all the procedures of practical justification that dissimulate normative assumptions behind a procedure that is supposed to be formal. Another classic objection – that of hypotheticity – is frequently advanced against ‘ideal or hypothetical procedure theories’, such as the ideal observer theory, and has been indirectly discussed when I defined the notion of rationality and when I faced the problem of ultimate justification of procedure32. A third objection, probably as powerful as the others, is both simple and strong. According to it, if the rules defining a rational discourse, engaged, for example, under ideal conditions, are exclusively formal, they do not lead (or nothing guarantees that they will lead) to substantial results, because they cannot confirm or reject the validity of any normative thesis. Ergo, to oblige speakers to participate in a rational discussion is not only useless but also harmful because of economical and temporal resources wasted in order to reach useless ends. I would like to call this objection that of indeterminacy, borrowing again the term from Celano33. Take, for example, the principle of consistency. No person can affirm that abortion is right and that, at same time, abortion is wrong. It is an unacceptable inconsistency. But the principle of consistency, obviously, cannot tell us which normative thesis is correct. Both of these theses are valid according to the principle of consistency. If all the rules that define a rational procedure are formal, as the principle of consistency, it will mean that the procedure is empty and, as we said before, that it does (or may) not lead to any substantial result. If the rational procedure is empty, we can ask how and why it should be considered useful. The question is important because it seems that such a procedure overlooks the only end that is supposed to be its own: determining if a value-judgement is correct or not. The upshot of this discourse is well known. In the realm of moderate relativism, it is possible to use the term ‘correctness’ only in a very limited and relative sense. A normative statement N could be ‘correct’ only in a sense of ‘justified through a set of reasons (premises) R’ and the whole justificatory process leads to a decision which can be at best explained psychologically or sociologically, but which is not amenable to justification34. The unique constraint imposed by a pure, rational argumentative procedure is that a speaker cannot rationally infer that a normative thesis – for example, that ‘sexual intercourse before marriage is immoral’ – is correct from whatever set of empirical and normative premises.

32 33 34

See above § 3 and nt. 16, 17 and 24. See B. Celano, 1992, pp. 55 ff. R. Alexy, 1998, pp. 139–141.

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For instance, it is possible that Quilty affirms that sexual intercourse before marriage is immoral and supports that claim in order to avoid the birth of unlawful babies35. And imagine that, at the present moment, we do not want to question the end that Quilty wants to reach. If Quilty wants to rationally justify the conclusion according to which sexual intercourse before marriage is immoral on the basis of the premise according to which it is right to avoid the birth of unlawful babies, a rational argumentative procedure will force him to add, at least, two further premises. The first is a normative premise, according to which abortion is unacceptable whenever and however it is done (before marriage); and the second is an empirical one, according to which every act of sexual intercourse results in, or highly risks resulting in, a pregnancy. The second premise, the empirical one, might have been valid forty years ago, but nowadays, in communities which are technologically developed enough to understand the use of contraceptives, it is no longer valid. Also, Quilty cannot infer the normative claim according to which sexual intercourse before marriage is immoral from both premises according to which it is right to avoid the birth of unlawful babies and abortion is morally right. The reason is obvious. If Quilty accepts that a woman, who has had a sexual affair before marriage and has become pregnant, is allowed to abort, then in such a case it will be possible to avoid the birth of unlawful babies without forbidding sexual affairs before marriage. So, which constraint is imposed by a rational argumentative procedure? As I have explained before, the unique constraint is that Quilty cannot rationally justify the claim according to which sexual intercourse before marriage is immoral through whatever set of empirical and normative premises. However, it does not mean that the rational discourse imposes a substantial constraint, because Quilty can always find a set of normative premises – even if they may be considered, by his community, strange or not reasonable – which are correct from the point of view of a rational argumentative procedure, and from which he can logically infer that sexual intercourse before marriage is immoral. If it is true that a rational argumentative procedure does (or may) not lead to any substantial result, and if it is true that we cannot infer a normative conclusion from whatever set of empirical and normative premises, then under which conditions is a rational argumentative procedure useful, even if empty? I would like to say that the more normative and empirical premises a determinate group shares, the more useful a rational argumentative procedure is. Because a rational discourse is the only way, if there is one, to enlighten and to give up all moral claims depending on prejudices and false beliefs; that is, the only way to see the real point of agreement and disagreement among people. 35 I have taken this example and the arguments used against this moral claim from A. Ross, 1965, p. 293.

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The importance and the usefulness of a rational argumentation is completely overlooked or misunderstood by many authors who say that if a rational argumentative procedure is formal, even if the participants stipulate which normative premises are to form the starting point to the discourse, then it will produce only tautologies or analytic truths. The term tautology leads us to think about something really obvious, as reasoning according to which we infer that Lolita must be punished, if all women who abort must be punished, and Lolita is a woman who has aborted. Even if it is correct that the result of a rational argumentation is, in the end, a tautological reasoning, the rational process of giving reasons and replies to criticisms may lead to shocking results that are not obvious at all (before the ideas affirmed at the beginning of the rational discourse). Just think about the analogy drawn by Peter Singer about abortion. Singer suggests that some people may reasonably agree, for instance, that a seven-dayold foetus does not have any property commonly attributed to human beings, because he feels neither pleasure nor pain, he has neither beliefs nor desires, and so on. In such a case, the unique reason that can justify a qualification of a seven-day-old foetus as a human being is not his status at this time, but what it will become in the future. The foetus is a project of life, a potential, instead of a real, human being. But, if we think that it is immoral to avoid the birth of a new life, then, says Singer, we will coherently have to conclude that the use of contraceptives and celibacy are immoral as well. Such a conclusion, that we logically have to infer if we accept the above premises, seems shocking, because, according to the analogy offered, there is no difference between a woman who has intentionally kept a single state for many years and a woman who has, intentionally, had an abortion by killing a seven-day-old foetus36. So, it is correct that the constraints imposed by a rational argumentative procedure are really poor and obvious37, because we can question preferences and value-judgements only by facts, logic (lato sensu), and a survey of the psychological origin of the preferences, for example, through a cognitive psychotherapy. Truly, no one should talk about rational argumentation. We are obliged to talk about rational discourse because of the poverty of (I do not want to say political, that is obvious) legal and philosophic discourses; because many discourses, in legal, bioethical, and philosophic fields, violate the most common rules of rational argumentation. I mean they do not give an acceptable reply to objections and criticisms, even if the authors are supposed to have the required temporal, intellectual, and economical resources to do it38.

36

P. Singer, 2001, p. 179. Cf. G. Cunico, 1987, p. 235, N. Rescher, 1993, p. 180 and A. Pintore, 1996, pp. 248–249. 37

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To close with, I would like to emphasise that the indeterminacy’s objection is correct. The result of a (formal) rational argumentative procedure is completely indeterminate. If the result had been different, such a rational procedure could not have been justified on the basis of a relativist metaethics, even if moderate. In our case the rational discourse can lead Quilty to reflect about what empirical and normative assumptions are necessary to justify his thesis. However, if Quilty engaged himself in a rational argumentative procedure, we do not know whether he would still claim that sexual intercourse before marriage is immoral, even if he acknowledged that it could be justified on the basis of further statements, for example, that abortion is wrong, or that use of contraceptives is also immoral, and so on. If everything that I said before is correct, it means that value-judgements should be considered ‘objectively founded’, in the weak sense shown, even if, in the realm of relativism, value-judgements are not objectively right or wrong in an absolute way. 5. Rational Discourse and Judicial Argumentation As I have said in the first section, the thesis according to which the justification of the major premise of legal syllogism should be rationally justified follows logically from two premises. According to the first premise, a normative thesis should be ‘objectively founded’. According to the second one, the judicial reasoning, rectius the justification of the major premise of legal syllogism, is a form of practical reasoning, namely, the judicial reasoning contains, at least, a normative premise. We have seen how and why a normative thesis should be ‘objectively founded’, that is, when the argumentation advanced in support of it accomplishes the hypothetical conditions (rules) established by a rational argumentative procedure. Why is the external justification of the major premise of legal syllogism a practical, instead of a theoretical, justification? To answer this question, I hope it is not necessary to discuss in depth the big controversy of whether judicial reasoning may be considered a form, more institutionalised and formalised, of 38 A paradigmatic case of such irrational discourses is the argumentation adduced in Bowers v. Hardwick, 106 S. Ct. 2841 (1986), where the Supreme Court of the United States, with a five-member majority, held that a Georgia statute which punished the crime of sodomy was constitutionally valid. The only justification offered to the Hardwick majority was that proscriptions against sodomy have ancient roots and that Blackstone too has qualified sodomy “as an offence of deeper malignity than rape”. Since the Hardwick decision provides no principle which can distinguish between the sexual privacy at issue in Hardwick and the privacy, entitled to constitutional protection, involved in prior rulings (about abortion, use of contraceptives, and so on) – just imagine that even some conservative commentators considered the Court’s decision unprincipled – Tribe concludes that it is probable that prejudice rather than (legal) principle was responsible for the outcome. The argumentation and all the quotations are taken from L. H. Tribe, 1988, Ch. 15, § 21.

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moral reasoning. The sense of such a controversy is not clear and can be interpreted differently39. In this paper, I would like to accept a really weak interpretation of the thesis according to which ‘the judicial reasoning is a particular form of practical reasoning’, an interpretation that seems to me beyond dispute. First, I use the expression ‘judicial reasoning’ in a very strict sense in order to mean neither the argumentations effectively advanced by judges nor the psychological process which brings judges to a decision. By ‘judicial reasoning’ I simply mean a reconstruction (an idealisation) of argumentations advanced by courts, i. e. the argumentation that a sincere judge would adduce, if one asked him/her which reasons may justify his/her deliberation (and if he/she had enough temporal resources to answer it), reasons that may not be perfectly coherent or rational. Second, I use the expression ‘practical reasoning’ to mean a reasoning that answers a practical question, for example, ‘What shall I do?’, which we have to distinguish from a theoretical reasoning, whose purpose is to answer a theoretical question, for example, ‘How do things stand’? The key idea is this: if the conclusion of a judicial reasoning has a normative character, and if there is no normative premise that supports, or may support, such a conclusion, then such reasoning is fallacious because it violates Hume’s Law, which forbids to infer normative conclusions from descriptive premises. In other words, a judge cannot infer the normative conclusion according to which ‘W should be punished with the sanction z’ from three descriptive premises according to which: (a) ‘The rule X (according to which, for instance, ‘If there is legal evidence that an a does b under the circumstances c, a should be punished with the sanction z) is a member of a legal and effective system Y’; (b) ‘There is, according to legal norms of the system Y, legal evidence that W is an a and that he/she did b under circumstances c’40; and (c) ‘According to legal system Y, W should be punished with the sanction z’. The fact that there is an effective legal system in a certain territory cannot be a reason for action. A judge’s deliberation, whatever it may be, is necessarily founded on a norm, according to which, for instance, ‘It is right to follow/apply the legal and effective system Y’. According to a reconstruction largely accepted in legal theory, a normative judicial justification may be divided into two parts. Part one is the (so-called) ‘internal justification’, whose structure is a deductive syllogism, containing two premises and a conclusion that follows logically from the premises. The first premise, the major, may say, for example, that ‘If there is legal evidence that an a does b in the circumstances c, a should

39 40

See, among others, J. C. Bayon, 1991, Ch. IX and C. Redondo, 1996, Ch. V–VI. C. Nino, 1993, pp. 32 ff.

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be punished with the sanction z’, while the second (minor) premise may say, for example, ‘There is legal evidence that W is an a and did b in the circumstances c’. The justification has a deductive character because one who accepts both premises has to accept also the conclusion, according to which ‘W should be punished with the sanction z’. Part two is the (so-called) ‘external justification’41. By ‘external justification’ I mean both the justification of the minor premise and the justification of the major premise. Furthermore, in this paper, I would like to argue only about the external justification of the major premise of legal syllogism. The norm that constitutes the major premise of legal syllogism is meant to be the result of an interpretation process of rule-formulations enacted by law-giving authorities, for instance statutory sentences. In this case, I would like to use the term ‘interpretation’ in a wide sense, according to which ‘interpretation (process)’ involves both an interpretative, in the narrow sense, and an integrative process of legally valid sentences42. If the term ‘interpretation’ is used in such a wide sense, we can reconstruct the different levels of such external justification of the major premise of legal syllogism in this way. The scheme of the (so reconstructed) external justification of a determinate interpretation of legally valid sentences would contain (a) an interpretation (result) of legally valid sentences as conclusion, and the following premises, (b) one or more arguments of interpretation, (c) a methodological principle, which prescribes a hierarchy between different arguments of interpretation, and, finally, (d) a conception of law that (may) support such a methodological principle43. The second element of such a chain-reasoning are the arguments of interpretation. Take, for example, the psychological or genetic interpretative argument, 41 See, among others, R. Alexy, 1998, pp. 176 ff. and N. D. MacCormick, 1994, Ch. II, III, V. 42 We can distinguish (at least) two senses in which the term ‘interpretation’ is used, a wide sense and a narrow one. In the wide sense, ‘interpretation of legal sentences’ is meant to be the process or the argumentation through which a judge applies to a certain case a norm which is the major premise of legal syllogism and which may be either the result of the interpretative process in the narrow sense or the result of a process that Diciotti calls interpretation-production of norms (interpretazione-normazione). The latter is a process directed to fill the gaps, to solve the antinomies, to introduce exceptions. ‘Interpretation’, in the narrow sense, is meant to be a process directed either to find out the literal or ordinary meaning of legal sentences, or to choose between the possible meanings of a legal sentence. See E. Diciotti, 1999a, pp. 201, 203 ff. In a similar way, Riccardo Guastini says that ‘integration’ of a given statutory sentence means the use of an argument in order to support a rule of decision that cannot be considered one of the possible meanings of it. For such a rule of decision fills a gap, solves an antinomy, or creates an exception. See R. Guastini, 1993, p. 363. 43 I have taken such scheme from E. Diciotti, 1999a, pp. 521 ff.

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according to which an interpretation of a statutory sentence is justified by saying that it corresponds to the intention of the author, namely, the historical legislator. Such an intention is generally grasped by reference to drafts or other documents written by those who approved the statute44. A methodological principle requires a hierarchy between different arguments of interpretation. For example, a methodological principle may prescribe that ‘it is necessary to attribute to statutory sentences the literal meaning, and when the latter is indeterminate we should ascribe the meaning that the statute will have according to the legislator’s intention or, if the latter is indeterminate, the meaning as coherent as possible with the ends and purposes of other sentences of the same statute or of the same branch of this legal system’45. Such a methodological principle requires the use of first, the semantic argument, second, the genetic argument, and third, a version (teleological) of the systemic argument. To conclude with, such a methodological principle may be justified by a conception of law46. A conception of law contains a theory of validity of legal sentences which are the object of interpretation and might or would support the use of a determinate methodological principle which prescribes how judges should interpret legal sentences considered valid. How might or would a conception of law be supported? As MacCormick says, a judge may decide to apply a certain rule of recognition on the basis of different reasons. Some – that we can call conformists – “may simply ‘play along’ not out of conviction but from a kind of salutary hypocrisy. Different again is the ‘delinquent’ position, that is, the position of those who accept and prefer the common patterns, subject to exceptions for themselves, so far as they can get away with it”47. But most judges will share an ‘internal point of view’, namely, they will have a ‘critical reflective attitude’ 44 About different arguments of interpretation and the genetic or psychological argument see E. Diciotti, 1999a, pp. 307 ff.; R. Alexy, 1998, pp. 186 ff. 45 About the notion (and different types) of methodological principle see, again, E. Diciotti, 1999a, pp. 494 ff. 46 For example, a genetic argument may be considered part of a method of interpretation that Diciotti calls ‘historical’. Such a method, by prescribing the use of some interpretative arguments which demand checks and searches about historical events, presupposes the idea according to which the meaning of a text depends on the intention of the author. Such a method may be justified on different conceptions of law, for example, a conception according to which the historical legislator is rational and just, pursuing right ends through appropriate means, till the law is changed by the actual legislator. Or a conception according to which legal certainty is the supreme value that a legal system has to accomplish. Central to the latter conception is the idea according to which to grasp the intention of the historical legislator, on the basis of drafts, is a value-free process, because drafts are less vague and ambiguous than statutes. See E. Diciotti, 1999a, pp. 398 ff. 47 N. D. MacCormick, 1994, p. 289. There are, sure, many other variants or intermediate types, such as that of the ‘rebel’, and so on.

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against the ends and values underlying the rule of recognition of a legal system. That is, they will approve (as morally right) the political model established by the rule of recognition. To conclude with, whatever position a judge might take, that of the conformist or that of someone who morally appraises the ends underlying the rule of recognition, his/her legal decision (is or) would be justified through a normative reason. However, it is probable that only a minority of judges will take the position of the conformist or the ‘delinquent’ and that such judges will be insincere in a legal argumentation oriented to solve controversies on the basis of normative standards, that is, they will elaborate arguments as if they accept the rule of recognition from the internal point of view.48 Furthermore, I cannot discuss in depth which consequences and problems arise from a participation in a rational, legal argumentation of members, partially, insincere. What I can say is that if the violation of the rule of sincerity implies a strategic use of the argumentation49, then such a use by a minority of judges either does not hinder, in the worst case, (or undermine the value of) a rational argumentative procedure between judges (and legal theorists), or, in the best case, is incompatible with a participation in a rational argumentative procedure50. 48 According to MacCormick, “The ‘playing along’, ‘delinquent’, and ‘rebel’ positions . . . are all comprehensible only in . . . opposition to the volitionally committed position”. In other words, the position of those who share the ‘internal point of view’ is necessarily presupposed by hostile or conformist positions. Such an idea is reasonable only under determinate conditions; because it is probable, from an empirical point of view, not only that we would have neither social nor legal rules without some members of the group who share an internal point of view, but also that we would not have (the need of) any rule, if some members of the group were neither indifferent nor hostile to them. See N. D. MacCormick, 1994, pp. 287–289. Cf. J. C. Bayon, 1991, pp. 735 ff. 49 According to Diciotti, a participant engaged in a discourse makes a strategic use of argumentation when he/she supports a thesis that he/she does not believe true or right, or through premises that he/she does not think true or right. A strategic use of argumentation is an easier way to persuade someone of a normative thesis, because it is quite impossible to persuade someone through premises and arguments that the latter thinks absurd or unjust. See E. Diciotti, 1999b, p. 276, who thinks that judges and legal scholars are necessarily brought up to make a strategic use of argumentation. 50 Why does strategic use of the argumentation either not hinder, in the worst case, (or undermine the value of) a rational argumentative procedure among judges (and legal theorists) or, in the best case, is incompatible with a participation in a rational argumentative procedure? It is possible that a judge has enough skills to elaborate a complex legal argumentation without violating any rule of a rational argumentative procedure (leaving out that of sincerity), even if the real motivation of the decision is a different one. Furthermore, if he/she offers a consistent argumentation, gives a reply to a sufficient amount of objections and criticisms adduced or that can be adduced, etc., then the value of the procedure will be kept, because this judge would elaborate an argumentation (with replies and so on) similar to that of a sincere judge. Ergo, he/ she would give the same contribution to a rational discussion. On the other hand, if a

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6. Conclusion The aim of this essay was meant to argue that the external justification of the major premise of legal syllogism should be ‘rationally justified’ or objectively founded. I have supported such claim by two premises. The first one, according to which the external justification of the major premise of legal syllogism is a normative justification, whose purpose is to answer a practical question; the second one, according to which normative statements should be ‘objectively founded’. Particularly, I have claimed that a normative thesis, under economical and temporal limited conditions, is rationally justified if, and only if, it is supported by mutually consistent reasons, founded on theoretical and empirical premises accepted as true within the group or the scientific community, and when these reasons give a logically correct answer to as many doubts and objections raised, or that could be raised, by other participants in the discourse as possible. Anyway, it is clear that the most important issue was meant to discuss why, and under which conditions, the external justification of the major premise of legal syllogism should be ‘rationally justified’. In this way, I have put forward the premises from which I can infer three important conclusions. First, if we agree that judicial argumentation is engaged by judges under economical and temporal limited conditions, we will have to reject an ideal and absolute model of judicial justification that we may call deep justification. A deep justification of a rule of decision, that is, the major premise of a legal syllogism, would require a judge to construct a complex justification containing, from top to bottom, a set of (ultimate) reasons that can justify a theory of law (a theory which says, for example, which authority, through which procedure, can enact legally valid sentences) and a methodological principle, which prescribes a hierarchy between different arguments of interpretation. If, as it would be reasonable, the judge adopted a methodological principle that prescribes the use of (a version of) the systemic argument51, a deep justification would involve (that the judge offers) an interpretation of (explicit and implicit) principles of legal system and a justification of it: interpretation of legal principles oriented to solve an antinomy, to support a choice between possible meanings of a statutory sentence, etc.

judge cannot elaborate a castle of arguments, replies to objections, which is coherent enough to dissimulate the real motives of the decision, the best way to discover the underlying motivation will be a rational argumentative procedure. A rational argumentative procedure is the only chance or means, if there is one, to make explicit some (racial, sexual, etc.) prejudices or, generally, value-preferences considered in our societies unacceptable or unreasonable. 51 According to such a version of a systemic argument the rule of decision should be coherent with legal principles of the system.

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Last, but not least, a deep justification would involve an argumentation that gives a reply to all objections raised by sets of (ultimate) reasons, theories of law, theories of interpretation, interpretations of principles of legal system, etc., different from those chosen by our judge. As I have just said before, it is not very rational to oblige a judge to elaborate such a deep justificationbecause (no human being and a fortiori) no judge would have enough economical or temporal resources sufficient to construct such a deep justification. A deep justification is an unreasonable normative pattern of judicial argumentation, and it is completely false if it is considered as a descriptive pattern of the argumentations really advanced by judges, even of Supreme Courts. Even if a deep justification would be tenable only under ideal or optimal economical and temporal conditions52, it does not mean that such a model of ‘deep justification’ is useless. Such a model shows us what is implicit or presupposed in judicial (and legal) reasoning. The fact that everyone can make explicit and justify only part of a whole does not mean that what remains implicit does not exist or is not important. A deep justification (as every ideal pattern) is a conceptual model which shows us that every judicial rational justification is part of a whole, of a (theoretical) mosaic. Even if everyone can see and build only a piece of a mosaic, it does not mean that this mosaic does not exist or that what he/she is doing cannot or should not be defined as part of this mosaic. The second conclusion of this paper is that a rational judicial justification of legal decisions is possible only under determinate conditions. Judges can, and must in my opinion, elaborate rational argumentations, under limited conditions, if, and only if, most of them share a set of empirical, theoretical, and normative assumptions53: for example, some assumptions about formal and sub52 There is, obviously, another reason that explains why ordinary judges (except Constitutional Courts) do (and should) not rationally discuss all the levels of a deep justification, particularly the levels concerning a theory of valid law and a set of (ultimate) reasons that might justify the latter. It is an ideological reason. Judges have the obligation to apply the law, because they are members of a legal institution. If judges could always rationally discuss which political theory can justify their obligation to apply the law, that would mean that they can decide if, and when, it is right or wrong to apply the law. Cf. E. Diciotti, 1999a, pp. 532 ff. 53 Such a conclusion is shared by many authors, as, for example, Aulis Aarnio, Robert Alexy, Aleksander Peczenik, Cass Sunstein, even if on different grounds. See A. Aarnio, 1987, pp. 210 ff.; C. Sunstein, 1993; C. Sunstein, 1996, Ch. II and III (who talks about “incompletely theorized judgements”); A. Peczenik, 1989. For example, Robert Alexy and Aleksander Peczenik elaborate the notion of ‘strong support’ to this purpose. “The concept of strong support thus matches the fact there are statements, as for instance norm-statements in legal reasoning, which play a special role in justification in a given context”. In other words, in every (theoretical or practical) theory or supportive structure there are assumptions that are considered more important or certain than others: such a phenomenon explains why a supportive structure is organised into different levels. “By the way, this is confirmed by the practice of judi-

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stantial criteria of the validity of legal sentences, or some properties that a methodological principle of interpretation should have. Such assumptions would be, most of the time, either taken for granted, I mean they would remain only implicit or presupposed in judicial argumentation, or, if they are made explicit, not further justified54. A rational judicial argumentation should not involve, most of the time, all the levels of a judicial deep justification and should not take into consideration all the objections and criticisms adduced, or that can be adduced, at each of the levels considered (for example, against the theory of interpretation chosen by a judge). The third conclusion is this: even if I believe that the external justification of the major premise of legal syllogism should be rationally justified, my definition of ‘rational speech under limited conditions’ is a really vague one. Since we cannot give a definition of rational argumentation, engaged under limited conditions, valid independently of a context, so we cannot determine when a judicial rational argumentation gives a reply to a sufficient amount of criticisms and objections without determining in which type of judicial argumentation objections, which a judge must answer, are raised. Furthermore, although I do not have much time to develop a general theory of argumentation that determines which extension or depth every type of judicial argumentation should have, we have seen above some reasonable criteria useful to elaborate such a model. I am talking about five criteria. First, it is necessary to calculate, approximately, the entire amount of economical and temporal resources that a standard judge would use in order to elaborate an argumentation of extension z55. Second, it is important to take account of the cial reasoning. For example, when sentencing Charlie for a petty larceny, it would be manifestly absurd for a judge to embark on a philosophical discussion of the validity of the penal provision applied, the problem of legal validity in general, the ultimate justification of practical reasoning, and so on”. See R. Alexy and A. Peczenik, 1990, pp. 135–137. 54 Enrico Diciotti does not agree with this conclusion. The author, in fact, elaborates a notion of ‘rational legal argumentation’ too strong, because, according to him, ‘a rational judicial argumentation’, necessarily, involves a certain degree of extension. For example, a rational legal justification should contain and, expressively, discuss all objections to the adoption of a certain methodological principle. Also, Diciotti seems to think that in legal communities of occidental legal systems there are no empirical conditions that would allow judges to engage in a rational, even if limited by temporal and economical constraints, argumentation: that is, a set of theoretical and normative assumptions shared by a large majority of judges and legal scholars. Cf. E. Diciotti, 1999a, pp. 532 ff. For a deeper discussion about this question and the arguments advanced by Diciotti, you may see G. Maniaci, 2001. 55 To calculate, approximately, the amount of temporal and economical resources necessary to develop an argumentation that has an acceptable degree of rationality is important because we cannot oblige judges to elaborate rational judicial justifications, if they cannot. In other words – as Taruffo says – we cannot expect judges who are drowning in thousands of suits, and afflicted by hundreds of judgements to pronounce,

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degree of normative acceptability of a thesis (that is, how much a thesis is considered persuasive), because the more a thesis is subject to criticisms and objections, the more the thesis should be justified. The third criterion (is implicated by the above criterion and) brings judges to take into consideration, because of economical and temporal limitations, only criticisms and objections considered reasonable or acceptable within the conception of life shared by their (occidental legal) community.56 The fourth criterion concerns how new the advanced arguments are. Every single argumentation, for example of a Supreme Court, should be considered part of a continuum, a long and unending chain-reasoning that unifies all (or most of) the judgements. An argumentation supporting a revirement of a Supreme Court should be more justified than the decision through which a Supreme Court confirms an interpretation rationally justified in other legal precedents. The fifth criterion concerns how important the deliberation at issue is. For example, it can be considered (sufficiently) rational the argumentation of a Court of first instance which takes into account nothing but criticisms and objections advanced by most judges about a determinate interpretation of (or a balancing among) legal principles. Furthermore, it can be considered rationally insufficient an argumentation of a Supreme Court, or of a Constitutional Court, that does not give an acceptable reply to reasonable criticisms advanced by legal judges and scholars about a new and highly controversial issue. As, for example, an interpretation of a fundamental right or a revirement of some legal precedents about the methodological principle that judges should follow.

to elaborate rational justifications. We must not only claim judges to argue rationally, but also we must give them the economical and temporal resources necessary to do it. See M. Taruffo, 1991, p. 100. Paraphrasing the title of a beautiful American book (S. Holmes and C. Sunstein, The Cost of Rights, Why Liberty Depends on Taxes, 1999), such a theory explains why rationality (of judicial argumentation) depends (also) on taxes. 56 A conception of life which, for instance, occidental legal (and non-legal) community members are supposed to consider completely unreasonable or unacceptable is that shared by some minority ethnic groups who (sometimes) live in occidental states. Think, for example, about the tribe of Dogons and about some rituals practised by such a minority, as, for instance, the clitoridectomy; about the myths made up by Dogons in order to support such a practice and about economical, psycho-sociological, and psychoanalytical theories elaborated by occidental interpreters in order to explain the origin and the purpose of such a practice. See M. Erlich, La femme blessé, L’Harmattan, 1986; N. Rouland, Aux confins du droit, Editions Odile Jacob, Paris, 1991 and the beautiful essays edited in “Droit et Cultures”, 20, 1990.

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References Aarnio, A. (1987), The Rational as Reasonable. A Treatise on Legal Justification, Reidel Publishing Company, Dordrecht. Alexy, R. (1993), Teoría de los derechos fundamentales, Centro de Estudios Constitutionales, Madrid, trans. by E. Garzón Valdés (Theorie der Grundrechte, Suhrkamp Verlag, Frankfurt am Main, 1986, [1st edn. 1985]). – (1998), Teoria dell’argomentazione giuridica. La teoria del discorso razionale come teoria della motivazione giuridica, Giuffré, Milano, trans. by M. la Torre (Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung, Suhrkamp Verlag, Frankfurt am Main, 1978). Alexy, R./Peczenik, A. (1990), The Concept of Coherence and Its Significance for Discursive Rationality, “Ratio Juris”, vol. 3, Nº 1 bis March. Aristotele (2000), Metafisica, Bompiani Editore. Bayón, J. C. (1991), La normatividad del derecho. Deber jurídico y razones para l’acción, Centro de Estudios Políticos y Constitucionales, Madrid. – (2002), Derecho, convencionalismo y controversia in Navarro P. E. and Redondo C., 2002. Blair, J. A./Johnson, R. (1987), Argumentation as Dialectical, “Argumentation”, Vol. I, nº 1. Brandt, R. (1979), A Theory of the Good and the Right, Clarendon Press, Oxford. Caracciolo, A. (1987), Il problema dell’errore nelle concezioni pluriprospettivistiche della verità, Il Melangolo, Genova. Celano, B. (1992), Giustificazione di norme e procedure ideali, in Comanducci P. and Guastini R. (ed. by), “Analisi e diritto 1992. Ricerche di giurisprudenza analitica”, Giappichelli, Torino. – (1994), Dialettica della giustificazione pratica, Giappichelli, Torino. Coleman, J. L./Leiter, B. (1995), “Determinacy, Objectivity and Authority”, in Marmor A. (ed. by), 1995. Comanducci, P. (1992), Assaggi di metaetica, Giappichelli, Torino. Cunico, G. (1987), “Errore e verità nel prospettivismo comunicativo di Habermas”, in Caracciolo A., 1987. Davidson, D. (1980), On Actions and Events, Oxford University Press. Diciotti, E. (1999a), Interpretazione della legge e discorso razionale, Giappichelli, Torino. – (1999b), Verità e certezza nell’interpretazione della legge, Giappichelli, Torino. Dworkin, R. M. (1982), I diritti presi sul serio, il Mulino, Bologna, trans. by F. Oriana (Taking Rights Seriously, Harvard University Press, Cambridge, 1978, 2nd edn. [1st edn. 1977]). Elster, J. (1983), Sour Grapes. Studies in the Subversion of Rationality, Maison des Sciences de l’Homme and Cambridge University Press.

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Erlich, M. (1986), La femme blessé, L’Harmattan. Frankfurt, H. G. (1982), Freedom of the Will and the Concept of Person, in Watson G. (ed. by), 1982 (1st print. in “Journal of Philosophy”, Vol. LXVIII, nº 1, Jan. 1971). Gianformaggio, L. (1986), Sul senso della giustificazione giuridica e morale, in Gianformaggio L. and Lecaldano E., 1986. Gianformaggio, L./Lecaldano, E. (1986), Etica e diritto, Bari, Laterza. Guastini, R. (1986), Produzione di norme a mezzo di norme. Un contributo all’analisi del ragionamento giuridico, in Gianformaggio L. and Lecaldano E., 1986. – (1989), “Osservazioni in margine”, to A. Aarnio, R. Alexy and A. Peczenik, “I fondamenti del ragionamento giuridico”, (partial) trans. by R. Guastini, (The Foundation of Legal Reasoning I-II-III. The Justification of Legal Transformations by Rational Legal Discourse, “Rechtstheorie” 12 (1981), I pp. 133–158; II 257–279; III 423–448) in Comanducci P. and Guastini R. (ed. by), L’analisi del ragionamento giuridico, Vol. II, Giappichelli, Torino. – (1993), Le fonti del diritto e l’interpretazione, Giuffré, Milano. Habermas, J. (1985), Etica del discorso, Laterza, Bari, trans. and ed. by E. Agazzi (Moralbewußtsein und Kommunikatives Handeln, Suhrkamp Verlag, Frankfurt am Main, 1983). Hare, R. M. (1952), The Language of Morals, Oxford University Press. – (1963), Freedom and Reason, Oxford University Press. Harman, G. (1977), The Nature of Morality, Oxford University Press. Holmes, S./Sunstein, C. (1999), The Cost of Rights, Why Liberty Depends on Taxes, New York, W. W. Norton. Leiter, B. (ed.) (2001), Objectivity in Law and Morals, Cambridge University Press. Lukes, S. (1977), Some Problems about Rationality, in Wilson B. (ed. by), 1977. MacCormick, N. D. (1994), Legal Reasoning and Legal Theory, Clarendon Press, Oxford, 2nd edn., with Revised Foreword (1st edn. 1978). Mackie, J. L. (1981), Ethics. Inventing Right and Wrong, Penguin Books (1st edn. 1977). Maniaci, G. (2001), I giudici tra interpretazione della legge e discorso razionale, “Nuovi Studi Politici”, Aprile–Giugno, XXXI, nº 2. Marmor, A. (ed.) (1995), Law and Interpretation. Essays in Legal Philosophy, Clarendon Press, Oxford. McNaughton, D. (1988), Moral Vision, Basil Blackwell. Mill, J. S. (1991), On Liberty, edited by J. Gray and G. W. Smith, Routledge (Philosophers in focus), 1st edn. 1859. Moreso, J. J., El reino de los derechos y la objetivitad de la moral, unpublished. Nathanson, S. (1985), The Ideal of Rationality, Humanities Press International. Navarro, P. E./Redondo, C. (2002), La relevancia del derecho. Ensayos de filosofía jurídica moral y política, Gedisa, Barcelona.

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Nino, C. S. (1993), Breve nota sulla struttura del ragionamento giuridico, “Ragion Pratica”, nº1. Peczenik, A. (1989), On Law and Reason, Kluwer Academic Publishers. Pettit, P. (2001), Embracing Objectivity in Ethics, in Leiter B. (ed. by), 2001. Pintore, A. (1996), Il diritto senza verità, Giappichelli, Torino. Ramberg, B. T. (1989), Donald Davidson’s Philosophy of Language. An Introduction, Basil Blackwell. Redondo, C. (1996), La noción de razón para l’acción en l’análisis jurídico, Centro de Estudios Políticos y Constitucionales. Rescher, N. (1988), Rationality. A Philosophical Inquiry into His Nature and the Rationale of Reason, Oxford University Press. – (1993), Pluralism. Against the Demand of Consensus, Clarendon Press, Oxford. Ross, A. (1965), Diritto e Giustizia, Einaudi, trans. by G. Gavazzi (On Law and Justice, Steven & Sons Ltd, 1958). Rouland, N. (1991), Aux confins du droit, Editions Odile Jacob, Paris. Schiavello, A. (2001), ‘Modest Objectivity’ ed interpretazione del diritto, in “Diritto e Questioni Pubbliche”, nº 1 (URL: http://www.dirittoequestionipubbliche.org). Singer, P. (2001), La vita come si dovrebbe, Il Saggiatore, Milano (Writings on an Ethical Life, New York, Harper Collins Publishers, 2000). Sunstein, C. (1993), Commentary on Analogical Reasoning, Harvard Law Review. – (1996), Legal Reasoning and Political Conflict, Oxford University Press. Taruffo, M. (1991), Il vertice ambiguo. Saggi sulla Cassazione Civile, il Mulino. Tribe, L. H. (1988), American Constitutional Law, The Foundation Press (2nd edn.). Villa, V. (1993), Conoscenza giuridica e concetto di diritto positivo. Lezioni di filosofia del diritto, Giappichelli, Torino. – (1998), Teorie giuridiche e giudizi di valore, in Comanducci P. and Guastini R. (ed. by) “Analisi e diritto 1997. Ricerche di giurisprudenza analitica”, Giappichelli, Torino. – (1999), Costruttivismo e teorie del diritto, Giappichelli, Torino. – (2001), Alcune chiarificazioni concettuali sulla nozione di ‘Inclusive Positivism’, in Comanducci, P. and Guastini R. (ed. by), “Analisi e diritto 2000. Ricerche di giurisprudenza analitica”, Giappichelli, Torino. Viola, F. (2001), Oggettività e verità dei valori morali, “Diritto e Questioni Pubbliche”, nº 1, (URL: http://www.dirittoequestionipubbliche.org). Watson G. (ed. by), 1982, Free Will, Oxford University Press. Wilson, B. (ed.) (1977), Rationality, Basil Blackwell (1st edn. 1970). Wittgenstein, L. (1958), Philosophical Investigations, ed. by G. E. M. Anscombe e R. Rhees, Oxford, Basil Blackwell (2nd).

Legislation, Adjudication, and Justification* Ofer Raban The following is a discussion of a significant but hidden principle guiding both legislation and adjudication. It argues that every legally valid requirement – be it a legal requirement announced in a statute or one established vis-à-vis a specific case – is supported by a publicly available justification which links the treatment of a certain category to the features of that category. And this, if true, has great significance both to the sort of laws that legislators legislate and to the sort of considerations employed in legal interpretation. This paper is relevant to the topic of this conference in two principal respects: it discusses the power exercised by legal interpreters (and judges) in establishing legal requirements, and it also illustrates how cultural or ideological differences may produce different legal requirements out of one piece of legislation – a point of some significance to the question of an all-European law. The point of departure for this discussion is a question raised by Ronald Dworkin in Law’s Empire – a question to which Dworkin’s own suggested answer is unsatisfactory. The correct answer will take us a long way in elucidating the essence of modern law and modern legal practice. 1. Legislation 1.1. The Principle of Public Justification In Law’s Empire Dworkin raises the following puzzling questions: Do the people of North Dakota disagree whether justice requires compensation for product defects that manufacturers could not reasonably have prevented? Then why should their legislature not impose this “strict” liability on manufacturers of automobiles but not on manufacturers of washing machines? Do the people of Alabama disagree about the morality of racial discrimination? Why should their legislature not forbid racial discrimination on buses but permit it in restaurants? Do the British divide on the morality of abortions? Why should Parliament not make abortions criminal for pregnant women who were born on even years but not for those born in odd ones? (Dworkin, 1991: p. 178).

* This paper is a segment of a larger work.

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We all feel, of course, that these suggestions are unacceptable; the question is why, and whether this has any significance to legal theory. Dworkin believes the reason why lies in our demand that all legal requirements derive from one “scheme of justice” or from one “set of moral principles”.1 This explanation, which I will not elaborate here, is wrong, but the question Dworkin has raised touches on a point that is crucial to the understanding of modern law. If we wish to know what is wrong with checkerboard statutes we must reexamine what distinguishes such statutes (for example, a statute allowing abortions to women born in odd but not in even years) from noncheckerboard statutes (for example, a statute making abortions criminal for pregnant women except for women impregnated by rape).2 Now, it appears that the essential difference between the two abortion statutes lies in the fact that in the checkerboard statute (the one forbidding abortions to women born in odd years but not to women born in even ones) we do not see any possible justification for treating these two classes differently; while in the case of the abortion regulation prohibiting abortions to all women but those impregnated by rape, we do recognize a possible justification as to why treat these two classes differently (the total lack of responsibility for the pregnancy, the degree to which the newborn is unwanted, etc.). Thus, it appears that we expect to identify a justification as to why a statute treats two similar categories differently, and with checkerboard statutes there seems to be no such justification (no justification as to why treat differently women born in odd and women born in even years in regulating abortion; and, similarly, no justification for treating manufacturers of washing machines differently than car manufacturers in product liability regulation, no justification for treating discrimination on buses differently than discrimination in restaurants, etc.). Checkerboard statutes prescribe one legal requirement to one class and a different legal requirement to another while the difference between the two classes does not seem to justify that difference in treatment. This expectation is commonly expressed in the idea of ‘equality before the law’: the similarly situated are to be treated similarly. This is not merely a formal adjudicative principle (where some positive law defines the similarly situated); it is a substantive legislative principle as well. A criminal statute which applies to those whose last names begin with the letters A–N but not to those whose last names begin with O–Z would violate our idea of equality before the law because we can see no justification as to why an act is criminal if committed by those whose names begin with the first letters of the alphabet but legal if com-

1 “The most natural explanation of why we oppose checkerboard statutes appeals to [integrity]: we say that a state that adopts these internal compromises is acting in an unprincipled way . . . [I]t must endorse principles to justify part of what it has done that it must reject to justify the rest.” See Dworkin, 1991, pp. 183–184. 2 I am following here Dworkin’s own example. See id., p. 183.

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mitted by those whose names begin with the last. We expect statutes to have a publicly recognizable justification for the distinctions they make. Now, that justification need not be easy to detect: some legal rules (those controlling secured transactions, for example) form a complex and interrelated system, and it may take some effort to figure out why a statute distinguishes between leases with, and leases without, an unlimited option to terminate. A similar effort must go into detecting the public justification of a statute like the U.S. Commodity Futures Modernization Act of 2000, which exempts energy trading from the regulatory scrutiny applied to brokers of money, securities, and commodities.3 The distinction between energy commodities and other commodities – like the difference between leases with or without unlimited options to terminate – is, presumably, what underlies the difference in treatment; but that difference is not immediately apparent, and its articulation may require some work. Here is another example: a statute which prohibits under-surface digging in a certain specified area. The public justification of this statute – like those of the two statutes above – is not immediately apparent; and yet neither appears to us as a checkerboard statute. The three have what may be called a ‘colorable’ claim for a public justification: they do not appear to us as checkerboard statutes because, looking at the distinctions they draw, we presume that the required justification does exist. This need not mean that they are not in fact checkerboard statutes: Dworkin’s examples presented us with categories where the possibility of a justification is basically null (distinguishing between those born in even and those born in odd years for purposes of the regulation of abortion does not have even a remotely colorable claim for a justification); but what these examples teach us also extends to statutes with colorable claims: that if these turn out to be empty promises, then we would reject them as well – and for the very same reasons.4 (And the question, Are they or are they not empty promises? must be answerable, in principle, by anybody wishing to ascertain it: the answer must be publicly available.) In short, the question to which we demand an answer – and which checkerboard statutes cannot supply – is this: What is it in the class of cases that falls within and that which falls without the statute’s directive that accounts for this distinction between them? And it is the absence of such a reason, or justification, which makes checkerboard statutes unacceptable to us. 3 Pub. L. No 106–554, 114 Stat. 2763 (2000), Codified in scattered parts of the United States Code. 4 This is precisely the accusation that was leveled against the Commodity Futures Modernization Act after the energy giant Enron – the company which lobbied for the exemption and spent much money securing it – collapsed under claims of serious financial misdeeds. The exemption allowed Enron to avoid scrutiny and thus to defraud its shareholders right up to the moment of its filing for bankruptcy; and, according to the critics, the exemption had no justification whatever.

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1.2. The Relation Between the Category and the Treatment Now, in raising the question of checkerboard statutes Dworkin in fact supplies a reason for the distinctions his checkerboard statutes draw: they are the result of legislative compromises – of the wish to accommodate seemingly valid but conflicting opinions (for instance, one opinion calling for the freedom to abort and another calling for its prohibition). Why can’t this reason furnish the required justification for the different treatments accorded by these statutes? It can’t because these different treatments have nothing to do with the features of the distinguished categories: we expect that any difference in treatment be a function of (or ‘have something to do with’ or ‘be related to’ or ‘be connected with’ or any such number of formulations) the dissimilarity between the differently treated classes. When a statute forbids abortion to all women but those impregnated by rape, the required justification must be such that the prescribed difference in treatment has something to do with (is a function of) the distinction between being impregnated, so to speak, ‘normally’ and being impregnated by rape. And similarly, when the criminalization of abortion is applicable to women born in odd but not in even years, the required justification must be such that the prescribed difference in treatment has something to do with the difference between being born in an odd year and being born in an even one. We expect to discern a justification as to what made the legislature draw the specific distinctions it did. Dworkin’s hypothesized reason does not explain why these two specific categories (women born in even years and those born in odd ones) are treated the way they are; in fact, under Dworkin’s hypothesis there is no such explanation – the two categories are, presumably, arbitrarily chosen. If you ask me to justify why I treat white chickens more kindly than I do brown chickens and I respond, “Because I have mixed feelings about chickens,” I haven’t justified much if what you seek a justification for is the very distinction I make between chickens that are white and chickens that are brown. The situation here is similar: what we seek a justification for is why the statute calls for a treatment of this particular category that is different than the treatment of that particular one. The response that “this is a compromise between pro- and antiabortion legislators” supplies nothing of the sort. Why do we demand that the justification of the law’s regulation be derived from the characteristics of the regulated class? This is one of the most essential limitations on power imposed by the legal order; and it is aimed at having the reasons for legal regulation publicly available: a legal system is essentially a system of regulation based on publicly recognized justifications. I will return to this important requirement later on.

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1.3. Arbitrary Distinctions? As against this claim it can be objected that in fact there are perfectly acceptable laws which draw arbitrary distinctions. This possibility has also occurred to Dworkin, whose understanding of checkerboard statutes is different from the one proposed here but for whom arbitrary distinctions are also a threat. Dworkin deals with this problem in the following way: he admits the existence of statutes having arbitrary distinctions (“[O]f course”, says Dworkin, “we do accept arbitrary distinctions about some matters: zoning, for example. We accept that shops or factories be forbidden in some zones and not others”); but he denies that they contradict his claims by denying that they raise any question of principle – i. e., they do not involve questions of justice (“But we reject a division between parties of opinion when matters of principle are at stake”5). (As we saw, Dworkin’s explanation of the rejection of checkerboard statutes is that we expect all our laws to derive from one scheme of justice.) Now, this way of trying to get rid of the problem, whether successful or not, is clearly not an option for me. But in truth, there is little reason for the concession that zoning ordinances draw arbitrary distinctions. Allowing that many laws exhibit some measure of arbitrariness as a result of their line-drawing (for example, when the driving age is set at sixteen), zoning ordinances exhibit just such arbitrariness and not more: given the wish to draw some line between one geographic area and another, the arbitrariness inherent in a zoning scheme is no greater than the one in a law setting a minimum age for driving. The different treatment accorded different zones is not unrelated to the distinctions between these zones: zoning is a well planned activity taking into account various distinctions between different geographical areas (number of residents, original character of the zone, its centrality, etc.), and it is simply false to think that no justification having to do with the difference between the zones can explain the different treatments accorded them. In fact, we would consider unacceptable a zoning scheme that delineates its sectors arbitrarily – one dividing urban space by drawing random geometrical patterns, for example. Take another statute drawing a seemingly arbitrary distinction: a law aimed at reducing pollution and traffic by allowing vehicles with odd registration numbers to operate only Sunday through Wednesday, and those with even numbers to operate Thursday through Saturday. Isn’t this an arbitrary (though perfectly sensible) statutory line-drawing? In fact, the difference between cars having odd or even registration numbers has much to do with the prescribed difference in treatment. That distinction differentiates between two groups of cars having the same number of cars, groups which presumably possess similar geographic distribution, whose ratio of family cars or trucks is roughly the same, 5

Dworkin, 1991, p. 179.

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etc. And the treatment prescribed for these two essentially similar pools is also essentially similar (the difference being merely the days of the week in which they may operate). Thus, the distinction between odd and even registration numbers does have something to do with allowing one category to drive only half the days of the week and the other category the other half. We demand a justification as to why this particular category receives a different treatment than that particular one; and here the features of our distinguished categories – and the difference in the treatment – give us everything we might need. There is no reason to concede that the law draws arbitrary distinctions: it doesn’t.6 1.4. Recharacterizing the Problem with Checkerboard Statutes Now, the problem with checkerboard statutes can be recharacterized by focusing not on the different treatment accorded two similar categories, but on the treatment accorded a statute’s operative category alone. Here is what I mean: the problem with the checkerboard abortion statute can be said to be not its unexplainable distinction between women born in even and odd years, but the lack of a justification for prohibiting abortions to the category of women born in even years (or allowing it for the category of women born in odd years). We seek a justification having something to do with the features of the category singled out by the statute as to why that category is treated as the statute demands.7 We have, of course, a justification as to why prohibit all women to abort, but we have no justification as to why prohibit it to women born in even years. (We seek a justification as to why the particular operative category is treated the way that it is.) The fact that there may be a proper public 6 There are rare cases where we actively seek a measure of randomness (and where the preference for the random therefore supplies some of the required justification for the distinction made by a statute). Statutes regulating jury selection are such an example: they devise a random mechanism for the choice of juries, and, within well-defined limits, the more random the process the better. But these are, once more, welldefined limits indeed: laws may aim at randomness but never at arbitrariness. A jury selection statute – like the license plate statute we just examined – applies to categories with certain well-sought features having to do with its prescribed treatment (for example, a representative distribution of racial or economic status). 7 For purposes of this discussion there can be no significant distinction between a general rule and an exception. The general rule merely constitutes the background conditions against which the exception defines the legal requirement. Thus, the exception for rape-caused pregnancies may be equally described not as an exception but as the granting of a legal privilege to abort. The requirement of rationality would remain the same: there must be a relation between the features defining our operative category and the legal requirement (or, more accurately in this context, the legal privilege) mandated by the law. What is being signaled by an exception is the idea that the operative category is justified with, but also without, the excluded class. Nevertheless, to say all that is to imply that there is such a justification in the background conditions: that legal requirements come as a clarification or change to a situation that does appear to us properly justified.

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justification for a statute prohibiting all women to abort need not mean that there is a proper public justification for a statute prohibiting abortions to women born in even years only.8 If our operative category is ‘males 18–21 years of age with a physical disability’, then the justification we seek is not only as to why treat males the way the statute requires but also as to why treat males ‘18– 21 years of age with a physical disability’ that way.9 In short, one need not look upon the problem of checkerboard statutes as the lack of equal treatment for two similar groups: we are offended by checkerboard statutes because there is no recognizable justification having to do with the features of the operative category (red-headed women, women at large, contracts made by minors, contracts at large, etc.), as to why the state treats that category the way the statute demands.10 1.5. Recognizing Justifications Now, as Dworkin also notes, we need not endorse a justification in order that it satisfy our demand for a public justification: we may recognize a justification as such even if we do not accept it as a good one. Dworkin correctly notes that a law criminalizing abortion except for pregnancies caused by rape may not be regarded as a checkerboard statute even by those who think that rape does not justify an abortion.11 Here is another example: take the claim that scientists should not experiment on human stem cells the size of the head of a pin for reasons having to do with the value of human life. This claim strikes many people as being at odds with their understanding of what human life is all about. But a statute withholding federal funding from experimentation with human stem cells may not strike these same people as a checkerboard statute: they can recognize a justification for its requirement even if they do not agree with 8 Similarly, a statute mandating that all stores be closed on Sundays may have a very different justification than one mandating that all stores selling alcohol be closed on Sundays. 9 The justification accounting for the different features of our operative category need not be one: we may have distinct justification for different features. This is the case in the statute prohibiting abortions to ‘all women not impregnated by rape’: the justification for prohibiting abortions to women (having something to do with the protection of human life) is rather distinct from the justification for prohibiting abortions only to those not impregnated by rape (having to do with the circumstances of a forced impregnation outweighing our initial concern). So the justification need not be one, but all the defining features of the operative category must be justified. 10 In any case, if there must be a justification having to do with the distinction between two seemingly similar categories as to why one category receives one treatment and a second category another, then there must also be a justification as to why the operative category receives the treatment that it actually receives. It is only in light of this latter justification that the justification justifying the different treatments can exist. 11 See Dworkin, 1991, p. 183.

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this justification, and even if it is in fact at odds with their own understanding of human life and its attributes. So the perspective from which one judges whether or not a statute is supported by a public justification is not restricted to one’s own understanding but encompasses opinions that may very well contradict one’s own.12 And yet, obviously enough, not everything goes. If what we demand of legal norms is that they have a public justification, then it is not enough that we recognize a claim for a justification if it is in fact a wholly unacceptable one. We looked at statutes (the abortion statute with exemptions for rape-caused pregnancies; the prohibition on experiments with human stem cells) regarding which one may recognize a reasonable justification, even if it is one with which one disagrees; but then a recognized justification can also be unreasonable. We recognize some opinions incompatible with our own as valid opinions (saying to ourselves, “Well, this is certainly not my opinion on the matter, but I can accept it as a legitimate one”); but there are opinions which, although we know them to be held by others, simply do not appear to us valid. For example, many people think that there is a relation between the position of the planets at the time of one’s birth and one’s psychological makeup. This opinion may be popular, but it clashes with some pretty solid ideas many of us have, and a statute based upon it would strike most of us as lacking a reasonable justification.13 A statute confining Jews or blacks to certain geographical areas similarly lacks a reasonable justification for its treatment of its operative category (although some nasty characters are sure to recognize a reasonable justification for it; such opinions, however, are today thought to conflict with some of our more solid moral beliefs, and these ‘justifications’ are no longer accepted as such; thus, what at one point may have been a perfectly acceptable statute would have transformed, by changes in moral attitudes, into a checkerboard statute – an offence to our legal sensibilities and our understanding of what can and what cannot constitute a law). In short, we see some positions as too un12 The public justifications we expect our laws to possess may derive from any corner of human understanding: scientific knowledge, economic theories, sociological studies, political and moral opinions, even religious beliefs. (In contrast, Dworkin sees in checkerboard statutes only moral arbitrariness.) The justification for the exception allowing abortions for women impregnated by rape is an example of morality informing the demanded justification. A law requiring people to be dressed modestly when entering public shrines derives its justification from religious understanding. And had we known, for example, that women born in the 1950s have a high propensity for giving birth to babies with a certain birth defect, an anti-abortion statute applying to all women but those born in the 1950s would have appeared to us to possess the required justification – here derived from medical knowledge. The essential point about those justifications is that they exist, so to speak, independently of the law. 13 Imagine a statute listing among the factors to be considered for the granting of a kindergarten license the applicants’ sign of the zodiac – preference to be given those born between March 11 and June 13.

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mistakably false, or as conflicting with ideas we think too well defended, and we will not accept these as justifications. Indeed the problem with the checkerboard statutes examined so far was merely a special case of the kind of legal norms we find unacceptable. These were a good heuristic device, for they demonstrated a point by appealing to the extreme and unequivocal case, but the point is equally valid in cases that are less extreme – and more controversial. If we object to the absence of a justification, then we also object to a totally unreasonable one. Whether or not an opinion (or a possible justification) is reasonable is oftentimes a highly controversial determination. It is also a determination which may hinge on nothing more than whether the opinion at issue is held among a certain elite. But all that is, at the moment, beside the point. The question we should ask ourselves is not whether people may disagree about whether or not a statute is a checkerboard statute (I’m sure they can); the question is whether we expect statutes to have the sort of public justifications of which I speak: whether, that is, a strict-liability statute applying to cars but not to washing machines, if legislated, is legislated on the premise that there is a difference between cars and washing machines which justifies this difference in treatment. The purpose of pointing to the fact that we expect our laws to have a reasonable public justification is not to provide us with a universal criterion for evaluating what can or cannot be law; the purpose is to expose how we perceive and shape our laws and our legal practice. Indeed this emphasis on the ‘reasonableness’ of the law has a long tradition in legal theory: not only in more recent accounts emphasizing the role of reason in legislation and adjudication,14 but also in the writing of some classical jurists – for example, in Coke’s famous remark in Bonham’s Case: “When an Act of Parliament is against common right or reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.”15 The remark was often attacked as subscribing to a vision of ‘natural law’, but to insist on a standard of ‘reasonableness’ need not entail a belief in the objectivity of that standard. So, to repeat: we expect our statutes to possess public justifications having to do with their operative categories as to why these categories are treated as the statutes demand. And although we need not endorse a justification in order to see it as such, it cannot be unreasonable if it is to be a justification at all.

14 “The statute ought always to be presumed to be the work of reasonable men pursuing reasonable purposes reasonably” Henry M. Hart and Albert M. Sacks in their famous and often-cited unpublished manuscript The Legal Process: Basic Problems in the Making and Application of Law (1958). See generally, Duxbury, 1993. 15 77 Eng. Rep. 646, 652 (C.P. 1610).

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1.6. Is all this Significant? It may be objected that all this is perfectly trivial: of course we expect our laws to be supported by reasonable and publicly available justifications! But we expect that because statutes that are not supported by reasonable and publicly available justifications either hide some wrongdoing, or else they are simply senseless. Legislators may wish to pass checkerboard statutes in order to hide certain beneficial treatments: for instance, they may wish to secretly benefit refrigerator manufacturers who contributed money to their election campaign by passing a law exempting heavy electrical products from any manufacturer’s warranty. Now, such a statute is objectionable because it hides a wrong. And if it does not hide a wrong, then it is objectionable because it is senseless: why exempt heavy electrical products from the manufacturer’s warranty if there is no reasonable justification to do so? So checkerboard statutes are indeed objectionable; but they are objectionable, to repeat, because they either hide some wrongdoing or because they are senseless; and it is objectionable (in general, not as a matter of some legal principle) to commit wrongdoing, and also objectionable (again, in general) to act senselessly. Hence, the fact that we reject checkerboard statutes tells us nothing about the law. We also reject statutes that are cruel or morally offensive, but there is no special legal principle against cruelty or moral offensiveness. Such an objection simply misses much of what I said above. We do not merely demand that statutes be supported by reasonable justifications: we demand that these justifications be publicly available, and also that they demonstrate a relation between the features of the operative category and the treatment to which a category is subjected. This means that many perfectly reasonable and honorable justifications for a certain regulation may be unacceptable so far as our laws are concerned. Indeed, Dworkin’s own hypothesized checkerboard statutes are neither senseless nor wrongful: a legislator concerned about the possible harms of strict product liability may reasonably consent to support a strict liability bill on condition that it applies only to half the products. There is nothing senseless or wrong about that. Moreover, legislators may simply wish to pass a checkerboard statute because they wish to support a certain class, or punish another, in a way wholly unrelated to the characteristics of these classes – though benefiting or harming these classes does not constitute any wrongdoing. For example, legislators may wish to benefit war veterans by exempting them from parking regulations, or they may wish to inflict harm on tax evaders by limiting their consumption of gasoline. These may sound crazy, but they are crazy only because we expect legislators to legislate laws with justifications having something to do with the features of the regulated classes. If we wish to call these statutes ‘senseless’, then their senselessness must lie not in the fact that no reasonable person in his right mind would want them, but in the fact that they are senseless as laws.

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Indeed, what is the aversion towards checkerboard statutes if not a ‘legal’ matter par-excellence? We reject the lack of public justifications to prescribed treatments only so far as our laws are concerned: surely we have nothing against just any ‘rules’ or ‘norms’ or ‘general standards of behavior’ which do not possess public justifications. Many standards of behaviour are taken and followed because someone in authority has prescribed them, without anybody thinking they also require a publicly available justification to be acceptable. We do not think, for example, that the rules of behaviour laid down by parents to their children (“one may never open this door”), or the rules army commanders lay down to their soldiers (“only those whose last names begin with the letters A–N get sniper training”), or the rules that religion lays down to the faithful (“you shall not shave your beard”) need have their justifications publicly available (or relate their treatment to the relevant category, for that matter).16 The attempt to analogize our rejection of checkerboard statutes to our rejection of cruel or immoral laws does not work here: we reject immoral and cruel norms wherever they are, but we reject norms lacking a public justification only when they appear in the form of a law. It is with legal standards that we demand a justification having to do with their operative categories as to why they demand what they do; and it is with legal standards that such a justification must be available to the subjects of the norm. It is indeed the failure on the part of many legal theorists (particularly legal positivists) to attend to the difference between rules in general and the sort of rules appearing in our laws (in contrast with religious laws, or with army regulations) which make their theories so irrelevant to the understanding of law.17 16 Thus, the young Iranian who talks to V. S. Naipaul in the book Beyond Belief is expressing in the following excerpt – as he himself very well knows – sentiments different than those of a religious devout: “– ‘Of course, looking at a woman has special rules. Let me see how many rules there are about it in Khomeini’s book.’ He went and brought back a big paperback: yet another book of rules by Khomeini, in addition to the five volumes I had seen in Emami’s library about buying and selling. Mhedrad said: ‘This one is called Resaleh or Tozih-al Masa-el. Rescript or Explanation of problems. There are ten basic rules about looking at women in this book of Khomeini’s. The book itself deals with three thousand problems.’ ‘Are people looking up things all the time? Do these rules really help people?’ ‘To me the rules about beards have no logic. They don’t say why. They just say ‘Do it.’ And I cannot be a religious person because I listen to most kinds of prohibited music. We have asked them a lot about it. They say that music is prohibited if it changes your mood or feelings. That’s nonsense. Because you cannot listen to music of any sort and keep your mood.’ ” See Naipaul, 1999, p. 223. 17 Lon Fuller made a similar point in his “Reply for Critics”, added to a later edition of The Morality of Law. There, he drew a distinction between “managerial direction” and law and then said: “law is not, like management, a matter of directing other persons how to accomplish tasks set by a superior, but is basically a matter of providing the citizenry with a sound and stable framework for their interactions with one

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It is a matter of common understanding that one of the requirements of the ‘rule of law’ is that the law be known. The claims advanced in the preceding pages allow us to understand this requirement in a new light: the knowability we require of the law is not merely that its subjects be advised of the standard of conduct required of them (that the law be ‘promulgated’), not even that these standards be clear and intelligible to those subjected to them; rather, it is that they also know the justification for the treatment prescribed by the law. This gives a new meaning to the opposition between the rule of law and arbitrary government: this opposition runs deeper than the idea that arbitrary government does not work by way of general and publicly available standards. It is an opposition between standards of conduct that are themselves arbitrary and standards supported by recognized public justifications. 2. Legal Interpretation 2.1. Public Justification, Legal Interpretation, and Contemporary Legal Positivism There is much that we can learn of our legal practice by inquiring into what is implied by the requirement of public justification. As an initial matter, it shows us a significant constraint imposed on the content of legislation, but it also teaches us much about legal interpretation. Indeed, once we note that statutes must possess public justifications, it seems only natural to conclude – and this is confirmed when we look at legal practice – that the principal reason for this is that their practical requirements (vis-à-vis particular cases) be publicly justified. Legal requirements must always be supported by justifications going beyond the mere fact that they were decreed by a legislative authority (whether they appear in the form of statutes or whether established in given cases). Thus, legal requirements established in particular cases must be supported by a justification going beyond the mere fact that a duly legislated rule demands such and such; it must also be the case that what the rule demands is, for one reason or another, justified in the case. And this also implies that the process of ascertaining what statutes require must take into account their public justifications. Now, the move to public justification as an essential element in legal interpretation (rather than a mere constraint on lawmaking) might draw the following protest: it may very well be – so the protest goes – that the sort of thing you named ‘public justification’ may be expected of statutes, but this may tell us nothing about the process of establishing what these statutes require (i. e., another, the role of government being that of standing as guardian of the integrity of this system.” Fuller, 1969, p. 210. Much credit must also go to Ronald Dworkin for criticizing what he called “the model of rules”. See Dworkin, 1967.

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about ‘applying’ them). That process is effected essentially through appeal to conventional linguistic understanding: the ‘public justification’ of a statute is quite irrelevant to determining what it requires legally. (Of course, if judges are ever forced to make law they may also be bound by the principle of public justification, but when they merely interpret the law they may be doing something altogether independent of it.) Such objections tend to assume two forms. The first straightforwardly denies that such a thing as a statute’s ‘public justification’ plays an integral – indeed, a necessary – factor in applying it. To rebut this objection one need only point to the realities of legal practice, and I will proceed to do that shortly. But there is another version to the objection, a version which is very popular among contemporary legal positivists. That objection readily acknowledges that legal interpreters may take into account the public justifications of statutes when applying them. But it says that this is so because what the law requires is only one among many other considerations taken into account in applying the law: nonlegal considerations play a part in this process as well. Moral considerations, economic considerations, political considerations, considerations of purpose – all come to bear on the ultimate determination side by side with the legal requirement in the case.18 In other words, legal interpreters consult the public justifications of statutes not in order to establish what the legal requirements are (these requirements are presumably established, for the most part, by conventions regarding the language of these rules), but in order to decide how to dispose of cases – decisions which often ignore the statute’s legal requirements. Now, this idea can be taken seriously only at the price of making insignificant the position it attempts to defend (i. e., the position that legal requirements are essentially the requirements of legal rules as understood by the conventions of language). If we adopt the position that ‘legal requirements’ are simply what legal rules demand as a matter of linguistic conventions, then we must also accept the idea that it is always expected, customary, and indeed fully legitimate for legal interpreters (including judges) to apply the law by considering nonlegal considerations. (‘Always’, if only in order to decide whether such nonlegal considerations are to be allowed to impact the decision – determinations which are themselves ‘nonlegal’.19 After all, it cannot be a random matter whether or not ‘nonlegal considerations’ figure in the resolution of cases.) So nonlegal considerations are always used – whether the legal rule is followed or not. And if this point is conceded then it must also be conceded that the important questions of legal theory are still up for grabs: our understanding of law 18

For this position see, e. g., Raz, 1986, p. 1107; Kramer, 1999. Putting aside the cases where, according to some legal theorists, the law itself requires the consideration of ‘extralegal’ considerations – when it calls for a moral evaluation, for example. 19

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only begins where the understanding of ordinary rules comes to an end. That is, everything that this understanding of rules has to say about the subjects of legal determinacy, judicial discretion, adjudication and democracy, etc., is of a highly limited interest to legal theory. For legal theory needs to understand how ‘nonlegal’ considerations interact with legal rules so as to guide their application in order to answer these questions in a meaningful way. Nor can it be doubted that the legal enterprise structures and constrains the considerations employed in applying these rules (i. e., that these ‘nonlegal’ or ‘extralegal’ considerations are structured, to a considerable extent, by the nature of legal practice). Thus, the study and analysis of these extralegal considerations and their relation to legal rules must constitute the principal concern of legal philosophy, and these ‘rule theorists’ simply write about a subject matter which is mostly beside the point so far as legal practice is concerned. So we need not get into unnecessary quibbles: if some people want to concentrate their efforts on ‘rules in general’ and then simply add that applying legal rules may involve much more than merely following rules – more power to them! This line of thought appears to me both awkward and inconsequential so far as legal rules are concerned (and the insistence that what the rules require is what the law does seems both arbitrary and odd, notwithstanding the various attempts to defend it). But, as I said, these claims should not detain us: whatever my misgivings about this way of seeing things, on its face this way doesn’t appear to conflict with my understanding. I will continue referring to applying the law and establishing the correct legal requirement as one and the same thing, but this can be seen merely as a matter of choosing a convenient terminology. We can now return to legal theory. 2.3. Legislative Intention It should be rather clear by now that these ‘public reasons’ have close affinity with the ‘purposes’ of statutes or their ‘legislative intentions’. The use of ‘legislative intention’ in legal interpretation is the subject of some heated debates, both in academic circles and among practicing legal professionals. I would like to show now how the above exposition bears upon these debates. One illustrative approach to the use of ‘legislative intention’ as an interpretive tool can be found in Jeremy Waldron’s Law and Disagreement, where the author pronounces: It is true that reference to legislative intent is reasonably common among judges and lawyers in America, and the appeal to ‘original intent’ is common too in the politics of American constitutional law. Philosophically, however, the idea of appealing beyond the statutory text to independent evidence of what particular legislators are thought to have intended has been subject to such powerful criticisms, most notably by Ronald Dworkin, that one is surprised to find it appearing again in any-

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thing other than a trivial form in respectable academic jurisprudence. (Waldron, 1999, p. 119. Footnotes omitted).

These criticisms often go as follows: it is meaningless – they say – to speak of a ‘legislative intention’ where the legislature is a body made of numerous individuals, each with her own ideas about the statute’s intention (sometimes with no such ideas at all), where the resulting legislative product may be the result of such political compromises as to conform to nobody’s intention anyway.20 Moreover, even if one could somehow overcome these difficulties, she would still face the following problem: ‘legislative intention’ is an idea that can be formulated on radically different levels of abstraction, and the disposition of cases may simply depend on the level of abstraction at which one chooses to speak.21 In short, legislative intention is an extremely speculative and manipulable idea that can offer no real guidance for legal interpreters. Now, these sweeping criticisms are to a large extent avoided once we understand ‘legislative intention’ in terms of the ‘public reasons’ upon which we spoke, and upon which statutes are based. To begin with, these criticisms attack a misconception of what ‘legislative intention’ is really about: ‘legislative intention’ is certainly not “what particular legislators are thought to have intended” in passing a statute.22 Discovering legislative intention is not an exercise in individual psychology: legislative intention is not a fact about what this or that legislator intended a statute to achieve. Rather, it is a hypothesis about the reason for which a certain category is treated in a certain way – and this reason is in principle always discoverable from the face of the statute (otherwise we would think that statute a checkerboard statute, and, generally speaking, there are no checkerboard statutes on our law books). It is what Lon Fuller called “the intention of the design”: the intention of the statute expressed in its design and discoverable from consulting it.23

20 For some modern examples see Dworkin, 1991, pp. 313–327; Waldron, 1999, pp. 119–146. 21 For a version of this criticism see, e. g., Linde, 1976, p. 212. 22 Dworkin would certainly agree with my claim: Dworkin’s criticism (and possibly Waldron’s as well) is aimed not at what American judges and lawyers are talking about, but at what some of their (positivist) academic theoreticians are. 23 Fuller, discussing the principles of legal interpretation, makes use of an analogy where an inventor of household devices dies, leaving behind him an unfinished sketch of an invention. His son is bequeathed the task of completing that work. Fuller then argues that the son has no need to discover the father’s ‘intentions’ so far as these are understood as phenomena of individual psychology. The relevant ‘intention’ – the one Fuller calls “the intention of the design” – is to be found elsewhere: the son “would look to the diagram itself to see what purpose was to be served by the invention and what general principle or principles underlie the projected design.” Lon Fuller, 1969, p. 86.

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So as an initial matter, appeals to legislative intention need not – and often do not – look “beyond the statutory text to independent evidence of what particular legislators are thought to have intended.” But even where such appeals are in fact made – to legislative debates, to committee reports, to speeches given by the sponsors of a bill, etc. – they may be fully justified: legislative intention is publicly available, but it need not be obvious; and such materials will oftentimes be helpful, or indeed indispensable, in ascertaining it (as, for instance, with a statute prohibiting below-surface excavations in a certain area, or with a statute prohibiting stores from opening on Sunday). Such materials are certainly not dispositive, but they are often highly relevant: they help legal practitioners formulate realistic hypotheses on statutes’ raison d’être.24 ‘Legislative intention’ correctly understood also avoids the charge that it can be framed on widely different levels of abstraction, each recommending a potentially different resolution to a case. Take the ‘no vehicles in the park’ example. The critic would like to say that this statute’s legislative intention can range from the relatively specific intention to ‘preserve park roads for walkers’ to the highly abstract intention to ‘create an agreeable place for park visitors’. Now, presumably, these different legislative intentions may call for different resolutions of cases – indeed, they seem to call for starkly different inquiries – so that appealing to legislative intention allows legal interpreters to defend whatever claim they wish to support. But this charge is to a large extent avoided once we allow that the correct ‘legislative intent’ of a statute, like its public reason, is the one relating the characteristics of an operative category (here, ‘vehicles’) with the treatment demanded (the ban from the park). This means that the ‘legislative intention’ of the ‘no vehicles in the park’ statute is neither the intention to preserve paths only for walkers nor the intention to create a pleasant environment (although these two may very well be the result of the statute); rather, it is the intention to keep the park free of certain characteristics of vehicles – their danger to pedestrians, their noise, or their pollution, for example – which constitutes the legally relevant ‘intention’. And whether or not a case falls under the statute’s legislative intention depends, at least in part, on the degree to which it poses these dangers. Now, this makes a big difference: according to the criticism, the way to hypothesize legislative intention is essentially to answer the question, What does this statute seek to achieve? And this question is, indeed, extremely openended: many different things can be achieved by barring vehicles from parks. But the real question is quite different: the real question asks, What features belonging to the category of vehicles explain barring them from the park? Here 24 A better hypothesis than the one suggested by such ‘extratextual’ materials may be formulated – whatever the legislators had to say, or actually believed, the intention of the statute was.

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the options are much more limited. This does not mean, of course, that there are no options at all; there are, and people may disagree about which is the correct one. (It may also remain unclear whether, and to what extent, the identified characteristics are present in the case.) Appeals to legislative intention can be a ruse when justifying a resolution where intention, properly understood, cannot preclude a contrary conclusion. But these problems are to be distinguished from the sweeping criticism seeking to depict appeals to legislative intention as a front for discretion running wild: appeals to legislative intention are not as problematic, or as unconstrained or manipulable, as this sweeping criticism implies. In truth, as I said above, appeals to legislative intention are not even optional: whether made explicit or not, they are the heart of legal interpretation, for to know what a statute requires in a given case is to know, first and foremost, what the reason is for the treatment demanded by that statute and how the case relates to that reason. Indeed, one of the essential problems of checkerboard statutes is that they are not amenable to proper legal interpretation. The application of checkerboard statutes can proceed only as the application of commands: legal reasoning stands helpless before them; it has nothing to grab on to, for it is precisely this link of justification between the features of an operative category and the legal requirement – so conspicuously missing here – which opens the way for legal interpreters to discover the requirements of a law. Establishing legal requirements does not amount to classifying cases as within or without categories determined by the conventions of language (as in the picture drawn by H. L. A. Hart)25; establishing legal requirements involves constantly qualifying and expanding the conventional delimitation of these classes so as to preserve the tenet of legal rationality: that the features defining an operative class justify its singling out for that particular treatment; that there be a justification why this particular class is treated in that particular way. The problem with laws lacking public justifications is that the only way to apply them is to engage in Hart’s unresponsive (if at all possible) linguistic categorization.26 3. Conclusion Our system of legal requirements is no island: all legal requirements are expected to pass a reasonableness test whose conditions are not themselves deter25

See Hart, 1961. That a statute must have a public justification, that that public justification is none other than its purpose, and that that purpose therefore need be reasonably justified are requirements long articulated in a doctrine of American constitutional law requiring that laws have a legitimate purpose and that they be reasonably tailored so as to achieve it. In fact, the degree to which American constitutional doctrines echo many of the requirements of legality discussed and analyzed here is rather striking. 26

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mined by law but are a function of our understanding of the world around us. All legal requirements must be reasonably and publicly justified in a way that links the operative category to which they apply to the treatment they require; and they must also be general, clear, and noncontradictory. It is this implicit but unconditional demand of ‘justifiability’ which opens the door to the well-known virtues of the legal system, as well as to its well-known vices; to its reliability as a flexible and adaptable regulatory mechanism; to the legitimacy with which it endows the exercise of power; and also to the ideological or moral biases which oftentimes shape our legal determinations. References Duxbury, N. (1993), “Faith in Reason: The Process Tradition in American Jurisprudence”, in 15 Cardozo L. Rev., 601. Dworkin, R. (1967), “The Model of Rules”, in 35 Univ. Of Chicago L. Rev., 14. – (1991), Law’s Empire, Fontana Press, London. Fuller, L. (1969), “Reply to my Critics”, in Fuller, L.: The Morality of Law, Yale University Press, second edition, New Haven. Hart, H. L. A. (1961), The Concept of Law, Clarendon Press, Oxford. Hart, H. M./Sacks, A. M. (1958), The Legal Process: Basic Problems in the Making and Application of Law, The Foundation Press, New York, 1994. Kramer, M. (1999), In Defense of Legal Positivism: Law Without Trimmings, Oxford University Press, Oxford. Linde, H. A. (1976), “Due Process and Lawmaking”, in 55 Nebr. L. Rev., 197. Naipaul, V. S. (1998), Beyond belief: Islamic excursions among the converted peoples, Vintage International, New York, 1999. Raz, J. (1986), “A new link in the chain”, in 74 Calif. L. Rev. Waldron, J. (1999), Law and Desagreement, Clarendon Press, Oxford.

Legal Reasoning and Plurality of Values: Axio-Teleological Conflicts of Norms Véronique Champeil-Desplats Contemporary legal systems abound in rights, freedoms, and principles of very different political, philosophical, or ideological inspirations. Beyond the formal and compulsory unit these systems are built on, the material plurality of the values which inspire and compose them inevitably appears. As developed by N. Bobbio, “our legal systems are not unit ethical systems . . .; they are not based on a single ethical postulate, or on a group of coherent postulates, but they are systems with several values and these values are often paradoxical, as . . . the individual freedom and social justice” (Bobbio, 1998, p. 91). For instance, the Italian Constitution of December 27, 1947, comes from a compromise between Liberal, Socialist, and Christian-social ideologies (Bobbio, 1998, p. 91). The French Constitution of October 4, 1958, placed under the paternity of General de Gaulle, refers to the preamble of the Constitution of October 27, 1946, which comes from a compromise between the Communists, the Socialists, radical forces, and right-wing Christians. This preamble proclaims the Rights of Men and Citizens Declaration of August 26, 1789 (which includes individual rights), fundamental principles recognised by the laws of the Republic (with indefinite objects and numbers), and political, economic, and social principles (mainly social rights). This plurality of fundamental values goes against the simplified representation of legal reasoning as taking the ideal and monolithic form of a syllogism in virtue of which the solution of a particular case results from the subsumption of a minor premise into one and only one major premise. One of the consequences of the ethical plurality which governs the development of legal systems is precisely that the major premise of the legal reasoning is not so obvious. The legal actor (i. e. any authority which produces a legal discourse) is confronted with several statements. Taking into account the interpretation that the legal actor has of them, these statements prove axiologically or teleologically contradictory1: individual freedoms challenge the public order or public health requirements; the right to expression challenges the respect for private life; the right to strike challenges the continuity of public utilities. 1

One will henceforth use the term “axio-teleological”.

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The interpretation the legal actor has of the various statements of the legal system is essential for the emergence of an axio-teleological conflict. It is a logical precondition at the stage of identification of the conflict, and a fortiori to that of its resolution. To diagnose a conflict, it is indeed necessary that the interpreter raises an incompatibility between the meanings and the consequences which it confers to each statement of the system. This is possible only at two conditions. The first condition is that the actor does not interpret too restrictively each statement likely to found the decision. If not, no superposition zone would arise. To some extent, such a situation would be semantically and pragmatically ideal, each statement of the system would have a fixed-application scope, and all statements would justify any decision. Without gaps or contradictions, the statements of the system would be organised in a complementary and harmonious way. The second condition is that the actor considers that the norm it must produce or control is both justifiable by a norm of the system and contrary to another. For instance, to consider that the norm “it is forbidden to smoke” is justified by the requirement for public health but incompatible with individual freedom, thus involving an axio-teleological conflict, it is first necessary to admit that it is included by the former but not by the latter. It’s true, for instance, if one believes that smoking is dangerous for health, or that smoking is the expression of an individual will. That said, the characteristics of axio-teleological conflicts will first be developed (I), then two conflict resolution types will be presented: an “exclusive normative base model” and a “plurality of normative bases model”. In the first case, only one of the norms in conflict justifies the chosen decision; in the second case, this decision results from a conciliation between the norms in conflict (II). Finally, the question of the choice of one of the two types of conflict resolution and of its purposes will be defined (III). 1. The Characteristics of Axio-Teleological Conflicts Axio-teleological conflicts present at least four characteristics compared to other normative contradictory situations: they are of the “partial-partial” type (1.1.); they emerge in concreto (1.2.); the usual meta-norms resolution of antinomies fails to solve them (1.3.); and they do not generally end in the invalidation of one of the challenging norms (1.4). 1.1. From the analysis of the deontic structure of the norms, A. Ross singles out three types of antinomies (Ross, 1958, pp. 128–129). The antinomy can be “total-total” when the temporal, spatial, individual, and material circumstances that the normative statements aim at entirely coincide: a norm imposes exactly what the other prohibits; one imposes exactly what the

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other allows not to do; finally, one prohibits exactly what the other allows2. For example, N1 prescribed “it is forbidden to smoke” and N2 “it is allowed to smoke”. The antinomy can be partial-partial when the two incompatible norms have an application scope partly identical but partly different: “adults are forbidden to smoke pipes and cigars in cinemas from 5:00 p.m. to 7:00 p.m.” versus “adults are allowed to smoke pipes and cigarettes in cinemas from 5:00 p.m. to 7:00 p.m.” Finally, when two incompatible norms have a partly identical application scope but one is more restricted than the other, the antinomy is known as total-partial: “adults are forbidden to smoke in cinemas from 5:00 p.m. to 7:00 p.m.” versus “adults are forbidden to smoke cigarettes in cinemas from 5:00 p.m. to 7:00 p.m.” Although the statements expressing the general values of the legal systems are not usually expressed in a deontic form such as “it is allowed” or “it is prohibited”, it is possible to transcribe them as follows: “it is allowed” or “it is obligatory to protect public health”; “it is forbidden to limit individual freedom” or “the individual is allowed to do what he wants”. Taking this new formulation into account, it appears that axio-teleological conflicts are “partial-partial”. Except for broadly interpreting each “public health” and “individual freedom” expression, the statements “it is allowed” or “it is obligatory to protect public health” and “it is forbidden to limit individual freedom” aim at activities that are partly similar but also partly different. A meeting point of their application scope and, therefore, their contradictions appears in concreto. 1.2. Thus, and this is the second characteristic, whereas deontic antinomies are observed in abstracto from the mere reading of the statements’ structure (“it is allowed to smoke” versus “it is forbidden to smoke”), the axio-teleological antinomies emerge in concreto when a decision is to be taken: individual freedom and public health protection appear contradictory when it is a question of determining if it is necessary to forbid the individuals to smoke or not. While the respect for individual freedom imposes not to prohibit individuals from smoking, health protection requires a prohibition. As R. Guastini summarised it eloquently, whereas the in abstracto deontic antinomies depend on the conceptual structure of the language used by the lawyer, the in concreto axio-teleological antinomies depend on the structure of the world (Guastini, 2001. p. 143) and on its interpretation by the lawyer. 1.3. The third characteristic of axio-teleological conflicts is that the metanorms usually used by lawyers to solve deontic antinomies – namely, the hierarchical criterion (lex superior derogat inferiori), the chronological criterion (lex posterior derogat priori), and the criterion of speciality (lex specialis derogat generali) – prove to be unsuited or inefficient. Indeed, the axio-teleological 2

See in particular on it not Bobbio, 1993, pp. 209–217.

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conflicts often concern contemporary statements. Whether such statements appear in a constitutional text which underwent revisions, or whether they are considered general principles of law proclaimed at different periods of the jurisprudential activities, the judges do not introduce any temporality. Semantically, these statements have an equivalent degree of generality; they are frequently given the same hierarchical level of norm significance except in cases where the legal system has organised a hierarchy, or in cases where judges create such a hierarchy by producing, for instance, supra-constitutional norms (See Troper, 1995, p. 389). In such a case, there is a modification of the hierarchical relationship between certain norms of the system, which can result in a new axioteleological conflict situation between the supra-constitutional norms themselves. The problem of the resolution criterion is then only put off. The doctrinal debate (born in France during the judicial review of laws), with respect to the preamble of the Constitution illustrates particularly well the maladjustment of the traditional resolution criteria of the conflicts. The preamble of the current French Constitution refers to three categories of principles: the Declaration of Rights (1789), the fundamental principles recognised by the laws of the Republic (mentioning the 1946 Constitution without listing the principles), and the economic and social principles that the same preamble enumerates (supra). Raising the risk of contradiction between these various norms, some recommended the use of a chronological criterion, which leads to granting a primacy to the economic and social principles of the 1946 preamble (Luchaire, 1982, p. 81). On the contrary, others considered that these principles were relative, linked to the historical and social context of the post-war period, and that it was preferable to grant a preference to the absolute and eternal rights recognised by the 1789 Declaration. Others finally challenged these attempts to make a hierarchy either for axiological reasons or for formal reasons. Thus on the one side, some considered that the recourse to the principle lex posterior derogat priori was conceived for ordinary laws but was more questionable concerning humans rights (Philip, 1979, p. 335). On the other side, others pointed out that if historically the various norms which compose the preamble were proclaimed at different times, legally only the fact of being enacted by the same constitutional act – the referendum of September 28, 1958, which led to the promulgation of the Constitution on October 4 – is relevant. Since they were adopted simultaneously, the “effect in time does not profit to one more than the other” (Vedel, 1990). It is the position finally adopted by the Constitutional Council. 1.4. Finally, the last characteristic of axio-teleological conflicts is that they do not end with the invalidation of the norm drawn aside for the justification of the decision. This norm remains in force and keeps an authority in other cases. Two explanations from different epistemological premises can be put forward. The first, of jusnaturalist inspiration, recommends the maintenance of the normative statements expressing certain values in the system precisely because of

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their specific moral weight. The rule of law would require that these statements (often called “principles”), although set aside for the resolution of certain cases, remain in the legal system to keep their authority in other cases (Dworkin, 1977, pp. 23–24). The second explanation, on the contrary, comes from a positivist inspiration. It observes that the common functioning of the hierarchy of norms requires that a norm can only be invalidated by a norm of higher level. In the particular case of the constitutional norms, only the reference to a supraconstitutional norm could lead to their invalidation. However, the positivists do not recognise supra-constitutional norms (unless legal order recognised them, which is very uncommon today). If axio-teleological conflicts between constitutional norms do not end by the invalidity of one of these norms (apart from the possible recourse to a supraconstitutional norm), the consequence can be the invalidity of the norms that each one of them justifies. For example, while individual freedom justifies the norm according to which smoking is allowed in any circumstance, the requirement for public health justifies the norm according to which smoking is completely forbidden. One can consider a system which privileges individual freedom and results in invalidating the norm which prohibits smoking or, on the contrary, a system which privileges public health and results in invalidating the norm which allows smoking. It is also possible to reconcile the two normative bases and to introduce exceptions to each norm they justify so that a third norm is produced and justified – for instance, “it is forbidden to smoke in public places”. In all cases the constitutional norms which are used as normative bases, individual freedom, and the requirement for public health stay valid.

2. Two Models of Resolution of Axio-Teleological Conflicts Axio-teleological conflicts can have two endings: either the actors choose to base their decision on only one of the conflicting norms, or they propose a conciliation with each norm allowing a partial justification of the decision selected. The first case defines an “exclusive normative base model” (2.1) and the second a “plurality of normative bases model” (2.2). In positive law, these models can coexist. 2.1. The Exclusive Normative Base Model 2.1.1. The exclusive choice of the normative base model corresponds to situations in which an actor is confronted with several contradictory normative statements to found a decision or, correlatively, with normative bases suitable to justify the stating of contradictory decisions. The actor chooses to take into account one of these legal bases.

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This ending is traditionally reserved to deontic antinomies. Legal systems built on a precept of coherence adapt poorly to the coexistence of norms prescribing contradictory conduits. What can be understood at a logical or ideological level can also be understood at a practical level. It is difficult for the same person to be simultaneously authorised and forbidden to smoke. To solve these antinomies, legal systems traditionally provide several criteria of resolution already mentioned (supra): lex superior derogat inferiori, lex posterior derogat priori, lex specialis derogat generali. After the application of one of these criteria, one of the two norms is put aside. It is either regarded as invalid and excluded from the system, or it is maintained in the legal system but with no effects. Traditionally, the situation of deontic antinomies is thus exclusive between the norms likely to found a legal solution: one of the two norms is applied, but not both. Besides, the ending considered remains the same when the traditional criteria of resolution are in conflict or when they appear insufficient. The research for substitution criteria such as “to keep the most permissive norm” doesn’t change anything regarding the ending, which consists in exclusively applying one of the two norms (Dworkin, 1977, pp. 23–24). This exclusiveness can also be found in axio-teleological conflicts between constitutional norms, and corresponds with the ending of the conflicts between “principles” proposed by R. Dworkin (1977, pp. 23–24). Let us recall that for the author the legal system is at the same time composed of rules and principles. Several characteristics would make it possible to distinguish logically these two categories. Rules fix a precise answer in the cases they determine; after the qualification of facts, they apply on the mode of “all-or-nothing”, with no half measure; if two rules propose contradictory answers, that means that one is not valid, except if one can be dealt with as the exception to the other. In this case there are not two rules but only one, whose right and correct statement mentions the exceptions. On the contrary, principles are attached to no specific facts. They provide objectives, general orientations the positive law must conform to. They are the expression of justice, equity, or other morals dimensions requirements. If they enter in conflict, their importance or their specific moral weight requires the choice of one of them without invalidating the other. As H. Kelsen has raised it, the consequence is that, while remaining both valid, “one of the two norms in conflict is respected and the other violated” (Kelsen, 1996, p. 289). Let us take the case of the smoking prohibition again: if the legal actors choose to allow smoking, individual freedom will be respected but the requirement of public health will be violated. Conversely, if the actors prefer to prohibit smoking, the requirement of public health is respected but individual freedom is violated.

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2.1.2. The selection of an exclusive normative base can be carried out according to a fixed and predetermined criterion or by way of casuistry. In the first case, the actor predetermines a selection criterion which enables him to solve in an unconditioned way all the cases which arise. He’s an interpreter of legal propositions who then engages in a “fixed axiological hierarchy”: he can, for example, and according to his preferences, give priority to social rights or to individual rights. In the second case, the actor sometimes gives precedence to one norm and sometimes to another, depending on circumstances. If a case ends by the application of only one of the normative bases in conflict, this solution is not established once and for all, but only related to the case debated. The actor chooses the normative base he estimates most adequate to justify his solution, or which offers a fairer or more effective solution. This mode of conflict resolution can be called “conditioned precedence” (Alexy, 1993, pp. 160–161) or “moving axiological hierarchy” (Guastini, op. cit.). 2.2. The Plurality of the Normative Bases Model The question at stake is ensuring, by conciliation or weighting, the partial application of the two norms which are in conflict. This type of resolution can only be carried out in a casuistic way. The specific circumstances of each conflict reveal the means for determining their ending. R. Alexy offers a modelling of this type of resolution concerning what he names the “collisions” of principles (Alexy, 1993, p. 161). In agreement with R. Dworkin, R. Alexy estimates in substance that the collisions of principles must be solved differently than contradictions between rules. While contradictions between rules find an ending on the ground of validity (one of the contradictory rules is excluded from the system), the conflicts between principles are solved on the ground of the “conditioned preference” (Prieto Sanchís, 1992, p. 42). R. Alexy precisely invites to distinguish between two situations: depending on the circumstances, the interpreter either estimates the total conflict in such a way that only the exclusive application of one of these opposing principles is possible (it is a “conditioned preference” situation described above), or the interpreter estimates the conflict in a partial manner, and the principles can be conciliated (it is a balanced situation). The matter can be schematised in the following way: P1 and P2 have an equal capacity to be applied to a given case. According to the circumstances (Cx), their application can be total and exclusive (C1 P1; C2 P2) or simultaneous and partial (C3 P1/x and P2 (x–1)/x). In other words, in a case C1, the application of P1 excludes P2; in a case C2, P2 excludes P1; and, in a case C3, P1 and P2 can be reconciled so that they are both applied in a proportional

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way. In this last assumption, R. Alexy establishes a “balancing law” according to which the larger the scope of a principle, the smaller the principle with which it enters in collision. Once again, let us use the collision between public health and individual freedom in connection with the prohibition of smoking. The model of exclusiveness leads the judge or the legislator to refer to only one of the two principles so that, according to the preferences, it is always prohibited to smoke, or it is always allowed to smoke. A balancing between the two normative bases results, according to preferences, in the application “on principle” of one of the two bases with exceptions consequent to the other normative base. These exceptions will be more or less significant according to the desired degree of conciliation. Thus, in theory it can be forbidden to smoke but allowed, by exception, to do it in certain places (private residences). Conversely, on principle it can be allowed to smoke but prohibited, by exception, to do it in certain places (public places) and at certain hours (from midnight to midday). By reasoning in terms of a posteriori justification of the normative production, the analysis is the same: to prohibit smoking only in certain places can be justified by reference to two principles – public health requirements (justification of the prohibition) and individual freedom (restriction of the prohibition to certain places). The reasoning of the conciliation of the constitutional norms can be schematised in the following way: – while the legislative normative proposal L (prohibition to smoke) is in contradiction with the constitutional norm P1 (individual freedom), L can be justified by the constitutional norm P2 (public health); – if there were only P1, L would not conform with the Constitution; if there were only P2, L would conform, whatever the conditions posed by L; – to conciliate P1 and P2 makes it possible to justify the validity of L under certain basic conditions and form, which are appreciated with individuality. The conciliation leads either to the partial application of each one or to the total application of one but the partial application of the other. It is no longer one of the conflicting provisions (P1 or P2) that justifies the proposal L, but a new norm P3, which is the product of the casuistic confrontation of P1 and P2. The jurisprudence of different constitutional courts offers many examples of this type of conciliation between norms of constitutional level. The Spanish Constitutional Court, for instance, chooses to proceed individually to the conciliation between the constitutional rights recognised to individuals and to the right to strike to require the maintenance of a “minimum service”3. The French Constitutional Council compels the legislator to conciliate individual freedom 3

For instance, Case 8/1992 du 16 janvier 1992, B.J.C., 1992, nº 130, p. 50.

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and public order to allow individual identity controls but only at certain basic conditions4. 3. The Choice of a Mode of Resolution of Conflicts and the Exercise of Normative Competences Faced with the plurality of normative bases, the legal actor has to choose: he either founds his decision on only one of the possible constitutional norms, or he proceeds to a conciliation. In positive law, certain actors, and particularly the constitutional courts, combine the two models. Certain rights can profit from a “fixed axiologic hierarchy” (the principle of dignity, for example), while others, depending on the circumstances, enter into a “mobile axiological hierarchy” or a conciliation ratio. One can wonder about the reasons which lead to choosing one of the modes of resolution (3.1.) and on the effects of this choice (3.2). 3.1. Reasons for the Choice: Between Discretionary Appreciation and Constraint The choice to base a decision on one or several constitutional norms can be entirely discretionary. Among all the normative bases with no hierarchy, the actors freely choose to privilege one, or to conciliate them according to their moral sensitivity or to a political majority. However, certain legal system requirements can have the effect of directing the choice and constraining the actors. There are internal constraints and external constraints. The internal constraints are due to the composition of the authority which decides. From this point of view, one can distinguish “single” actors and “collegial actors”. Single actors (i. e. those who decide alone – the President of the Republic, a single judge, a lawyer) are legally free to propose the mode of resolution of the conflict. The situation is more complex for collegial authorities (a parliamentary assembly, advisory administrative organisations, constitutional courts). The choice to found a solution on a constitutional norm, or, on the contrary, to take into account a plurality of the possible normative bases, is related to the composition of the authority. A heterogeneous political, moral, or expert composition tends to register the decision in the model of plurality of the normative bases. Indeed, the decision will be formed only by reconciling the different points of view represented. On the other hand, a homogeneous composition tends to impose solutions justified by only one of the constitutional 4 For instance, Case nº 80–127 DC des 19 et 20 janvier 1981, rec. 25. For Germany, see Alexy, op. cit.

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norms in conflict. The real configurations always vary between these two extremes: strong majorities and the needs for conciliation are built and broken according to each question discussed. To internal factors are added external factors. The actors decide in a legal system composed of other actors who can influence their decision or who have to be convinced to adopt the suggested solution. All the actors subjected to a controlling authority undergo a limitation of the discretionary character of their choice because they are captive to the mode of reasoning privileged by the controlling authority. Thus, as constitutionality control develops, the discretionary choice goes from the legislator towards the judges of the constitutionality: if the judges of the constitutionality establish an axiological hierarchy between constitutional norms, the norms produced in the legal system must respect this scale of values; if, on the contrary, they estimate that it is necessary to reconcile the various constitutional norms, the legislator must implement this conciliation under the control of the judge who, depending on the circumstances, will conclude on the adequacy of the conciliation. It remains that for the constitutionality judges the choice of the mode of conflict resolution can also be restricted. On the one side, the choice should not dissatisfy the actors who can overrule the judges’ decisions. On the other side, if the judges want their modes of conflict resolution to be respected by the other actors, they are obliged to adopt a coherent attitude which consists in not brutally modifying their modes of resolution. Besides, the constraint of coherence is stronger if the judges get involved in a “fixed axiological hierarchy” than if they privilege a “moving axiological hierarchy,” or if they conciliate each particular case. Indeed, if the judges engage in a “fixed axiological hierarchy” that they do not respect, they widen the possibilities of the other actors deciding as they wish: they will only be subjected to the uncertainty of the ending the judges reserve to the resolution of conflict between the constitutional norms. When the judges choose a mobile axiological hierarchy or a conciliation, they are from the start in this last situation. By privileging a resolution mode case by case, the judges’ solutions are less foreseeable, and it makes it easier for other actors to arrange the conflict norms as they wish, but under control. This unpredictability of the ending of any conciliation operation is recognised by certain judges themselves. As conceded by G. Vedel, former member of the French Constitutional Council, conciliating “is not Solomon’s judgement of cutting the object of the litigation in two perfect halves. The judge operates a balance (in which subjectivity cannot obviously disappear) between the involved values. He will concede more or less to one or the other norms in conflict by using very different criteria.” He concludes by saying, “[W]e are in a world of spirit more than in a world of geometry” (Vedel, 1990, p. 59).

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3.2. Effects of the Choice: Between a Position of Principle and the Reign of the Circumstances From the strict point of view of values, the choice to proceed to a conciliation corresponds more to the situation of the constitution-making process previously evoked than to the exclusive choice of a normative base. It perpetuates the plurality of the values recognised by the constitution, even if the interpreters’ conciliations probably wander from those imagined (if they ever were) by the participants in the constitution-making process. The actor conciliating the constitutional norms then becomes a “democratic interpreter” who respects the plurality of the values present in society as their equal claim to become a source of law. Conversely, the choice to proceed to an axiological hierarchy, especially fixed, leads to a foreign “monism of the values” to the constitutionmaking process. It tends to a “monarchical” figure of the interpreter who tends to impose a universal scheduling of values. From the point of view of the exercise of the normative power, the dilemma is then the following: the exclusive model is characterised by an absence of compromise privileging solutions of “principle”, which, apart from the diversity of interpretations linked to the chosen normative base, has as a counterpart the predictability of the solutions; on the other hand, the plurality model is characterised by its flexibility and its adaptation to the circumstances but tends to be unpredictable and risks reinforcing their arbitrary character. It surpasses the reign of the circumstances over that of principles. References Alexy, R. (1993), Teoría de los derechos fundamentales, spanish translation by E. Garzón Valdés, Centro de estudios constitucionales, Madrid. Bobbio, N. (1993), Teoria generale del diritto, G. Giappichelli Editore, Torino. – (1998), “Des critères pour résoudre les antinomies”, in Essai de théorie du droit, L.G.D.J. Dworkin, R. (1977), Taking Rights Seriously, Cambridge (Mass.) – London, Harvard University Press. Guastini, R. (2001), Estudios de teoría constitucional, Doctrina jurídica contemporánea, México, D.F. Kelsen, H. (1996), Théorie générale des normes, Paris, P.U.F., coll. Léviathan. Luchaire, F. (1982), “Procédures et techniques de la protection des droits fondamentaux”, in L. Favoreu (Dir.), Cours constitutionnelles européennes et droits fondamentaux, Aix-Marseille, Économica.

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Philip, L. (1979), “La valeur juridique de la déclaration des droits de l’homme et du citoyen du 26 août 1789, selon la jurisprudence du Conseil constitutionnel”, in Études offertes à Pierre Kayser, Aix-Marseille, P.U.A.M. Prieto Sanchís, L. (1992), Sobre Principios y Normas. Problemas del Razonamiento Jurídico, Centro de Estudios Constitucionales, Madrid. Ross, A. (1958), On Law and Justice, Stevens & Sons, London. Troper, M. (1995), “La notion de principes supra-constitutionnels”, in R.I.D.C., Journées de la Société de législation comparée, vol. 15. Vedel, G. (1990), “La déclaration des droits de l’homme et du citoyen et la jurisprudence de 1789”, in La Déclaration des droits de l’homme et du citoyen et la jurisprudence, Paris, P.U.F.

Interpretation and Judicial Discretion Isabel Lifante Vidal 1. Introduction When one explains the dynamic dimension of law, it is usual to distinguish two great moments: on the one hand, the creation of general norms, or legislation; and on the other, the application of norms, or jurisdiction. In the first case, it is a question of creating general norms which aim to direct the behavior of citizens to the future. In the second case, it is a question of applying these general norms, using them to solve the conflicts that may arise. Obviously, these two moments are supposed to play very different functions within a legal system. The innovation of law, the change, corresponds to the first moment. However, the second moment’s role is to enforce the contents of law, and in this sense its function is conservative rather than innovative. Moreover, two different dimensions can be found in law which are present in all its forms; here, I am referring to the dimension of power, or the voluntarist dimension, and to the justificatory dimension, or the rationalist one. Now, it is easy to perceive that in each of those great moments we have mentioned above, or from the perspective of each of their key operators (the law maker and the judge), one of these latter dimensions is emphasized. In this way, from the moment of its creation, law is basically seen as a phenomenon in which the dimension of power (or the voluntarist dimension) prevails; whereas, from the moment of its application it is the justificatory aspect (or the rationalist one) of the law that is predominant. Thus, the judge is required to show his decisions as positively predetermined by existing law1. These two different moments of the dynamic aspect of law are usually presented in clear opposition to each other. This does not mean that it is not accepted that sometimes the activity carried out by an authority may be, at the same time, in part one of creation and in part one of application; but still both activities are considered as essentially different. What I would now like to point out is that beneath the presentation of these two moments, or these two contrasting activities, lies the fact of considering them not only as mutually exclu-

1

Cfr. Aguiló, 2000, pp. 121–123.

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sive but also as jointly exhaustive in the sense that nothing exists between pure creation ex novo and application through a subsumptive reasoning. Thus, I believe that this opposition is the one which constitutes the key to the usual way in which the relationships between the two concepts referred to in the title of this paper – judicial interpretation and judicial discretion – are understood. To talk about interpretation in the judicial realm seems to lead us to the activity of application, in which the prevailing dimension is the justificatory one2. Here, interpretation can be considered the necessary activity of reconstruction of the preexisting legal materials with the end of finding the legal solution (the legal solution provided by the law in its entirety) for a specific case3. However, judicial discretion is normally understood as a peripheral phenomenon which is connected to the idea of the limits of law. We are, therefore, dealing with the realm of judicial activity in which application has no place and creation, the voluntarist dimension of law, arises. The coincidence of these limits with a greater or a lesser scope of judicial activity – and, therefore, the fact of giving a more or a less important role to judicial discretion as opposed to interpretation – is made dependent on the greater or lesser trust in practical reason. This approach neglects a very interesting activity which is halfway between pure creation and mere application. The characterization of this activity presupposes a reconsideration of the relationships between interpretation of law and legal discretion. To carry out such a task, I think it is necessary to build a concept of discretion different from the one implicit in that approach. This is a concept of discretion which I consider to be more relevant to the legal realm than the aforementioned one and which, unlike that one, cannot be conceived either as a side effect of the existence of norms or as a merely peripheral phenomenon to the exercise of authority. On the contrary, it constitutes a central phenomenon which is necessary to carry out one of the essential functions of contemporary legal systems: to actively promote certain ends or values. This other concept of discretion is thus linked, as I will try to show, to the task of concretion and development of law. It is an activity for which interpretation of law is necessary, although insufficient. 2 Although, this should be qualified in the sense that not all theories would agree with this characterization of the activity of application or with the characterization of the activity of interpretation of law. Guastini (1990), for example, opposes formalist theories to sceptic or realist theories. The first ones are those which claim that interpretation consists in finding the meaning of a text, so that interpretative statements can be true or false depending on whether or not they reflect that meaning. For the second kind of theories, interpretation does not consist in the act of finding, it is the interpreter instead who creates the meaning of a text. Moreover, there are intermediate theories which hold that in some cases it would make sense to speak about finding a meaning, whereas in other cases a meaning is created. 3 On other occasions I have analyzed the concept of interpretation, and I have particularly supported this characterization of it (cfr. Lifante Vidal, 1999a and 1999b).

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In the following I will concentrate on the characterization, in some detail, of the notion of judicial discretion (I should point out that the aim of my analysis is to be valid, not only with respect to judicial discretion, but also with respect to legal discretion in general); but in order to do so, I believe it is necessary first to draw a distinction between this concept and the one I referred to previously, which is more frequently linked to judicial discretion. For the moment, and to start this analysis, it might suffice to offer a rather rough approach to the phenomenon of legal discretion which enables us to place the controversies existing around it. To do so, we can make use of the two following elements, which appear constant in the different analyses of legal discretion: on the one hand, the freedom to choose among different options enjoyed by a legal authority in its decision-making activity; and, on the other hand, the fact that this freedom is not absolute but is, on the contrary, constrained by a certain normative framework. Taking this approach to the concept of discretion as a starting point, I think it is easy to explain the fact that the traditional battlefield of the discussions on this phenomenon has been that of the sphere of administrative law. Within the formalist paradigm, discretion is restricted to certain acts of the public administration. For this paradigm, the legislature and the judiciary play very clearly defined roles, which are mutually exclusive: the legislature makes law, and the judiciary simply applies it. From this perspective, with regard to the acts of the legislature, one cannot speak of discretion because the legislature is a “sovereign” body which, therefore, enjoys absolute freedom. What is missing, then, is the element of certain legal constraints that, together with the margin of freedom, usually characterize discretion. The situation is completely the opposite with respect to jurisdictional bodies. For this paradigm, judicial activity concentrates on the declaration of what the law contains (the judge is considered to be the mouth of the law), and what is missing here, if we want to speak of discretion, is precisely any margin of freedom. However, as should be expected, the very moment these premises begin to be questioned, the discussions with regard to discretion multiply and the controversies on whether it is possible to speak about discretion also in those two domains (besides that of public administration) promptly arise. In this sense, we might perhaps use Kelsen’s thesis, as a starting point, to illustrate the extent of the relevant scope of the discussion on the phenomenon of discretion. As is widely known, in Kelsen’s view the legal system is structured like a pyramid: each norm takes its validity from the hierarchically superior norm, and this is so because the norm that is on a higher level regulates the procedure by which the norm on a lower level comes into being and also, to a greater or lesser extent, its contents. In any level, the relationship between the higher and the lower level of the legal system is, in Kelsen’s view, one of determination.

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However, this determination is never complete – in his opinion (either because the aim is to empower the lower authorities to fulfill the indeterminacy, or due to unintentional defects such as ambiguity, contradictions, etc.). Thus, in Kelsen’s opinion, in no case will positive law allow to find only one right answer, a sole correct solution to be individualized. The interpretation which is necessary to carry out the application of law must, then, be necessarily an act of the will and not only an act of knowledge. The determination of the sense of a norm in order to apply it to the case is, therefore, the result of a freely taken decision, of a decision not bound by the legal system; in short, of a discretionary decision. In Kelsen’s construction, discretion constitutes a phenomenon which is inherent in every process of concretion and application of law and which therefore can be found in every level of the legal system. In this sense, in Kelsen’s opinion it is merely a quantitative difference, not a qualitative one, which exists between the discretion exercised when an Act of Parliament is drafted in accordance with the Constitution, and that which is exercised when making a judicial decision or an adjudicatory order. In Kelsen’s opinion, then, the concepts of application and creation of law are always correlative4. Since Kelsen, in legal theory, the discussion on the subject of discretion has focused for a long time almost exclusively on the judicial field. In this way, one of the main features taken into account to characterize and classify the different theories of law is precisely that of their position with respect to the problem of whether or not judicial discretion exists. There are radical theories, like those of the realists, according to which judges enjoy discretion in all cases (they are the true law makers); moderate positions, such as that of Hart, according to which judges enjoy discretion only in certain cases: the “hard” ones; and absolutist positions, according to which judges do not enjoy discretion in any – or in hardly any – cases, of which the most characteristic example is the theory presented by Dworkin, with his thesis of the “one right answer”. In the legislative field, revitalization of this subject has, however, been much more recent. It could be said that the subject has gained theoretical interest due to the rethinking of the roles played by the legislative power and the judicial power in the current constitutional State. If one accepts that the constitution is a source of law and that, as such, it pervades ordinary legal reasoning, then one must accept the existence of constraints on legislative power which are established by constitutional norms in such a way that legislative activity can no longer be considered completely sovereign. It should be pointed out that both the discussions on the subject of whether or not judicial discretion exists and those discussions about whether it is adequate to speak about the discretion of the legislator seem to work on the premise that a clear concept of discretion exists, whose paradigm would be pro4

Cfr. Kelsen, 1986, pp. 153 ff.

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vided by discretion in the administrative realm. However, I do not consider that the premise according to which the concept of discretion used in the administrative scope is clear, or at least univocal, is adequate. 2. Usual Approaches to the Phenomenon of Discretion We will now look at some of the most frequent approaches on the subject of legal discretion that one can find among philosophers of law as well as in legal science (legal dogmatics) – basically administrative law scholarship – with the aim of drawing from there those elements which are generally used when defining it. There are two perspectives which are generally adopted by the different analyses of this phenomenon. One of these is that which assesses what discretion is or what discretion means. The other is that which approaches the issue of how discretion arises or when we can say that an authority enjoys discretion, that is to say, the origin or the sources of discretion. One could say that, on the one hand, these two questions are not the only ones (there are also those concerning how discretion should be exercised, or the possibility of the controlling of discretionary acts); and, on the other hand, that these two questions cannot be seen as independent ones (although some authors see them in this way, in the sense that they consider it possible that, for example, someone who does not “have discretion”, “exercises discretion”5). 2.1. The Meaning of Discretion With regard to the first perspective, and as I earlier pointed out, the idea that discretion is a certain margin of freedom when making decisions is held unanimously. However, this unanimity begins to disappear when the time comes to be more specific as to the meaning of the said freedom. I will now classify the different answers given to this question into three sections, depending on the feature which is deemed defining or central to the characterization of discretion. 2.1.1. The Choice among Different Alternatives One of the most frequent opinions is that which holds that discretion exists because of the existence of several solutions which are equally valid for law, 5 This is, for example, Waluchow’s opinion, for whom, whereas in the expression “S has discretion” the notion of discretion is used to describe a normative relationship between the subject and authoritative standards; in the expression “S exercises discretion”, such a notion describes a decision or actual judgment made by S. That is to say, this latter type of expressions are used to describe the fact that the subject has performed the type of decision which discretion authorizes (Waluchow, 1983, pp. 338 ff.).

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among which the decision-making authority has to choose. In this way, discretion is seen as the power or faculty to choose among two or more courses of action, each of which is seen as allowed by the system of reference in question, in our case that of the law6. If discretion is the freedom to choose among various alternatives in accordance with the law, then if discretion is to exist there has to be more than one solution; but the number of available alternatives can vary a great deal, and so discretion is seen as a phenomenon in which various degrees can be observed. 2.1.2. The Absence of Applicable Legal Standards Another frequent characterization of discretion is that which defines it as an absence of legal standards guiding the decision-making process. Dworkin, for example, states that “discretion in its strong sense”7 exists when an official, when faced with a given problem, is simply not bound by standards imposed by the authority in question. In a similar sense, on occasion, a general concept of discretion, in terms of choice among different alternatives based on non-legal criteria, is drawn (Desdentado, 1997a). Discretion then makes reference to the adoption of decisions in a way which is not linked to the legal system. This type of approach takes the form of statements such as “where law ends, discretion begins” (Davis, 1969). Taking this characterization as a starting point, the question arises as to how the subject who enjoys discretion should act; and on what he should base his decision. The answers we find here are diverse. Some authors have emphasized the idea that, since no legal standards guiding the decision exist, the official has to act upon the reasons he believes to be correct. Others point out that the fact that no such legal standards exist does not entail that the official is completely “free”, but that such freedom is “relative” to a given system, in this case, the

6

Cfr., for example, Sáinz Moreno (1976), Barak (1989) or Bell (1992). Dworkin distinguishes three senses of the term discretion. A weak sense, which merely refers to the fact that the norms which an official should apply cannot be applied mechanically. On the contrary, they require discernment (the official should follow his judgment in order to apply the standards which are imposed upon him by the authority). Another weak sense, but different from the last one, according to which an official has the final authority to make a decision which cannot be reviewed or reversed by another official. Lastly, the strong sense which we are speaking about here. In Dworkin’s opinion, the sergeant who is ordered to choose the five most experienced men would not have strong discretion in this sense because the order aims to direct his decision, yet he would have if what he were ordered to do was to choose the five men he wanted (Dworkin, 1989, pp. 83–87). This distinction has been greatly criticized; cfr., among others, Bell, 1992, Galligan, 1986, Nino, 1985, Desdentado, 1997, and Lempert, 1992. 7

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legal system, and that the official can be bound by other types of standards, for example, those of practical rationality. 2.1.3. The Absence of Reviewability or the Ultimate Character of the Decision In the studies on discretion a third feature appears, that of the absence of reviewability, or, the ultimate character of a decision. Although few scholars define discretion directly taking this element as a starting point, one frequently finds classifications which take it into account. Thus, for example, some suggest to speak about “provisional” discretion when an official is free to choose among different courses of action, but this decision is subject to review and possible reversal by another authority; and about “absolute” or “ultimate” discretion when no other authority can review the choice made, even when it is arbitrary or unreasonable8. On occasion, this feature of absence of reviewability is seen as a, if not necessary, at least fairly plausible, consequence of the above-mentioned features of discretion. Thus, it is thought that if a decision-making body can make judgments among permissible alternatives, then “normally” others will not be authorized or capable of reviewing or reversing the decisions. This is also the opinion of many administrative law scholars for whom, if the discretionary power means giving the administration a certain freedom of decision depending on the existing circumstances in each case, then such a power seems to reject, ex hipothesi, any kind of control which, if admitted, would deny the freedom which the term “discretion” proclaims. Lastly, there are scholars for whom no such connection between the aforementioned features and the one we are now analyzing exists. They would be independent matters which form different “meanings” of the term discretion. This opinion would be, for example, shared by Dworkin (1989), for whom one of the weak meanings of the term discretion is precisely the one which makes reference to the fact that someone’s decision is final, in the sense that no other official can review and reverse it, like the decision of a football referee over whether or not a player is offside. 2.2. The Origin of Discretion The second perspective from which discretion can be approached is that of its origin: when or why an authority can be said to possess discretion. Bell, for example, points out that an appropriate characterization of discretion must con8

Cfr. Davis, 1969.

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tain, along with an element of certain freedom of choice, a reference to the way in which this freedom is generated; it is not enough that some room for choice is given, it is also necessary that it should be a legitimate decision; and Bell considers that this legitimation can be given in two ways: it can appear either as a consequence of the conferment of power, or as the result of some absence or indeterminacy of the legal materials (Bell, 1992, pp. 92–97). In fact, most approaches to discretion usually mention these two sources; but while some analyses use them as different ways in which the very same phenomenon can arise, others, basing themselves on them, distinguish different types of discretion; and still others deal with these two expedients, but with the aim of showing that real discretion is only linked to one of them (to the delegation of a power). Kelsen and Hart can, for example, be found among those who consider that the difference between the discretion originated by one or the other reason does not exist. As we know, in Kelsen’s opinion (1986) the relationship between a higher level and a lower level of the legal system is one of determination. But this determination can never be complete, because, as is always the case, there exists a margin of free discretion for the adjudication authority. Kelsen considers that there are two types of indeterminacy: intentional or unintentional. The first type makes reference to the cases in which the norms (because so is the will of their creators), expressly or implicitly, empower the authorities which are in charge of applying them to fill that indeterminacy; but in Kelsen’s opinion, the cases in which indeterminacy is unintentionally generated (the second type), due to the defects which affect legal norms, have the same effect. In Hart’s opinion (1990), indeterminacy is the price one has to pay for the use of general classifying terms; a situation would not be possible (nor even desirable) in which the norms were so detailed that, whether or not they were applicable to each particular case, it was always clear beforehand, so that a new choice among different alternatives would not be necessary in the moment of their application. In Hart’s opinion, two different kinds of indeterminacy – among others – can be distinguished: the unavoidable semantic indeterminacy and a “more radical” indeterminacy, that is, the one in which the granting of a margin of discretion to the lower bodies is desired because it is considered impossible to foresee, even approximately, the circumstances that might affect a particular case and which must be taken into consideration when making the decision. As we have said, other scholars use the above-mentioned duality as a basis on which to establish classifications of discretion, considering that there is a type of discretion which is that originated by the explicit delegation of a power of decision (which they call formal or strong discretion); and another type, which is the one that arises from imprecision or indeterminacy in law (informal or instrumental discretion). The differences are usually shown in a merely quantitative fashion; it is said that in cases of implicit discretion there are more

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standards applicable to make decisions, and therefore the degree of discretion is lower than in cases of explicit discretion9. Lastly, there are scholars, basically in the administrative law field, for whom discretion only arises in the presence of a previous attribution or delegation of a power by the law. In this way, the possibility that discretion arises as a consequence of mere inaccuracies is excluded. In this sense the contrast between, on the one hand, the mere margin of appreciation caused by the use of indeterminate legal concepts and, on the other hand, authentic discretion, is by now classic, although not unanimous (Sáinz Moreno, 1976). 3. A Few Conceptual Points Taking the analysis of these different approaches as a starting point, one can draw a series of common basic ideas with respect to legal discretion which can be summarized in its characterization as a certain margin of freedom when making decisions, which arises either as a consequence of the indeterminacy of law or from the delegation of a power; that is to say, the notions underlying most characterizations of this phenomenon are the notions of freedom, legal indeterminacy, and power. Given that none of them are known precisely for their simplicity, the heterogeneity in the definitions of discretion based on them and the countless and endless discussions which take place on this phenomenon are not surprising. That is why it is necessary to analyze these three concepts. 3.1. Discretion as “Freedom” The element of freedom when making decisions probably appears as the central feature in most analyses of discretion. The idea that this freedom is not absolute, but has certain limits imposed by a “normative perimeter” surrounding it, is also unanimously shared. This is precisely the idea which Dworkin referred to in his famous metaphor about the hole in the doughnut: to speak about the hole (which is the margin of freedom) only makes sense when there is a doughnut (which is the normative perimeter). Over and above the image suggested by this metaphor, it is by no means clear what is meant by saying that discretion consists of a margin of “freedom”; and, in this sense it is easy to see that unanimity begins to vanish the moment one tries to specify this idea more precisely. Now, this lack of unanimity is not surprising if we take into account that the concept of freedom is far from being either univocal or clear, even when it 9 Cfr., among others, Kelsen (1986), Atienza (1995), Desdentado (1997a), and Luzzati (1990, pp. 132 ff.).

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refers to individuals, who, one could say, constitute its primary scope of reference; so, it is far less clear when “freedom” refers to legal authorities, as is the case with discretion. But first let us recall the different senses of personal freedom. It is unavoidable to mention here Berlin’s distinction between the negative and positive senses of liberty (Berlin, 1988). In its negative sense, liberty is simply the scope in which an individual can act without being hindered by others. This sense refers to a relational concept; so, a subject is either free or not, in relation to a specific subject or a specific action. The second sense, that of “positive liberty”, is connected to the idea of autonomy; the idea is to be able to guide behavior in accordance with norms that the subject dictates to himself. It seems that the first two ways of characterizing discretion, to which we made reference before (as the existence of options or as an absence of legal standards) are usually understood as applications of the idea of negative freedom: as permission or the absence of obstacles to decide one way or another. However, I think it would be possible to interpret discretion in a way which is closer to the idea of positive freedom, emphasizing not the idea that the decision-making authority can do what he wants, but that it is up to him to determine which course of action should be taken (by specifying, to this end, the standards guiding the decision). This way of understanding freedom does not lead us back towards the idea of permission, but to that of responsibility. As I will try to show, discretion understood in this way does not necessarily imply either the existence of different lawful options or the absence of legal standards guiding the decision-making act. If we take a conception of discretion linked to the idea of negative freedom as a starting point, we would have to consider that, in the same way that this concept makes reference to a specific action, discretion, so understood, is the freedom to make any of the decisions which are in accordance with the law. However, if this is so, in order to speak about discretion it is first necessary to identify the options among which the judge or the official must choose, and, in this sense, discretion arises after a reconstructive activity of law which leads to the verification of this plurality of options. On the contrary, if we speak about freedom in the other sense, which is closer to positive freedom, that is to say, emphasizing that it is the decision-making authority who has to specify the guidelines of his behavior, what is described as free – in this other sense – is not a particular action, but something that we could consider as being previous: the adoption of the standards which will lead to the specification of the available alternatives. Discretion understood in this way is detectable before the identification of the alternatives which – ultimately – will be considered as being in accordance with the law.

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Of those features which are usually related to discretion, we have yet to analyze the connections between “freedom” and the third one (the ultimate, unreviewable character of a decision). This connection can be understood in two different ways. The first considers that the freedom in which discretion consists lies, precisely, in the lack of control or reviewability of the discretionary decision. We could say that, in this sense, the absence of control is what generates or implies the discretion (or freedom) of the decision making. In the other kind of connection, the relationships work in the opposite way; it is a question of considering that, if a decision is legally discretionary (and, therefore, in some sense “free”), then the decision cannot be subject to control or review by any other legal authority, since there will be nothing to be controlled or reviewed from the legal point of view. But let us see, in slightly more detail, if these connections work. In the first case, the “freedom” in which discretion consists is understood as an absence of reviewability. But I reject this idea: the fact that a decision is not subject to control or, in other words, is final, does not imply that it is a “free” decision (in any of the usual senses of this term); were it so, it would make no sense to hold that a decision of this kind is legally wrong. As Hart points out, the fact that a decision is final, or that no other legal authority has control over it, does not amount to saying that it is infallible, although it is possible that the statement that a body was wrong when making a decision lacks practical consequences within the system. Therefore, I do not think it is appropriate to speak of discretion in these cases; it would be a use which is not homogeneous with any of the others, and which would only make reference to the conferment of powers as to who has the last word on what the law is prescribing. Let us see now what happens if we understand the connection in the opposite way: if a decision is legally discretionary (and, hence, in some sense free), then legal control cannot be exercised over it – or over its discretionary aspect – since freedom would imply that there is nothing capable of being subject to legal control. As we have seen, administrative law scholars are thinking of this kind of connection when they discuss whether judicial review over discretionary actions of the administration is possible or not. I think we are dealing with a serious objection, but, in my opinion, it is only correct if discretion is understood as a margin of negative freedom. If it is thought that when an authority has discretion it enjoys the freedom to make a specific decision, in the sense that the legal system grants it permission to choose among different options, then whatever its decision, as long as it is within the permitted margin, there will be nothing to object to its censure from the legal point of view. However, this consequence does not follow if we distance ourselves from this characterization of discretion and opt for one closer to the idea of positive freedom. Lastly, we should draw our attention to the risk which exists when speaking in terms of “freedom” in order to characterize certain acts carried out by public

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authorities. One should be aware that when freedom refers to individuals it is connected to personal ideals. However, even though it is possible that the reference to personal freedom, as a realization of the will or development of autonomy, is sufficient when justifying an individual action which falls within the framework of the granted freedom, this justification seems to fall short in those cases in which “freedom” refers to public authorities. There is no reason to believe that the fact that public authorities enjoy a margin of “free” or discretionary conduct should be, in itself, of value. On the contrary, it should always be assessed and justified in an instrumental way.

3.2. The Indeterminacy of Law References to the indeterminacy of law, with respect to discretion, appeared when the question of its origin was approached. Some scholars consider that all discretion is the result of indeterminacy; whereas for others, indeterminacy of law is, at most, only one of its possible sources. It seems clear that we are dealing with a concept which can be used in at least two senses. The first sense is one which is linked to the legal adjudication. Hart (1990) drew attention to the fact that, in the process of subsumption of particular facts under general classifying heads, the duality between a core of certainty and an area of penumbra, where the applicability of the norm is indeterminate, is an unavoidable result. This phenomenon of legal indeterminacy is sometimes analyzed through the lack of truth-value of certain legal propositions as a starting point. In Moreso’s words, a legal system suffers from indeterminacy if the legal propositions referring to a state of affairs lack truth-value (Moreso, 1997). The problem arises, therefore, when establishing the applicability of a norm to a case, whether individual or generic. Here we include all the semantic problems which affect norms, as well as those generated by contradictions, legal gaps, etc. If we use Hart’s analysis again, it should be pointed out that it is a question of “relative” indeterminacy: it will not arise in all cases in which the norm applies, but only in those which fall into the area of penumbra; moreover, deeming a case to be easy or hard is a task which can only be carried out in the light of the circumstances of the case itself, and in this sense as well one can say that this indeterminacy will always be “relative to a case”. I think that it is this first sense of “indeterminacy” which matches the cases we earlier termed “indeterminacy as imprecision”, but it does not appear to be this sense which underlies those other cases which Kelsen referred to as “intentional indeterminacy”, nor some of those which Hart considered “a more radical indeterminacy” and which could be seen as a delegation of a power of decision. Kelsen gives the following example: a health law establishes that when an epidemic breaks out, the administrative agency has to determine the

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measures that should be taken in order to avoid the disease spreading. Here, indeterminacy is not said of the applicability of a specific norm to a case; it is not a question of a legal proposition lacking value of truth but of the fact that it is the norm itself which does not determine what conduct to take in the cases to which it refers. The norm does not intend to determine the conduct beforehand but to leave it to the application authority to establish, in the light of the circumstances of a specific case, what the most adequate conduct is in order to achieve the end sought by the norm. And I think it is in this sense that it is said that this kind of indeterminacy works as a delegation of power. This is why this sense of indeterminacy is not connected with a problem of subsumption: it is not that the truth value of the proposition that describes the applicability of the norm to a case is not determined but that what is undetermined is what the norm requires for the cases – all of them – to which it applies. Such indeterminacy exists, then, independently of its connection with specific cases. For the authors who used a strict concept of indeterminacy which corresponds to the first of the senses mentioned here, indeterminacy is seen as only one of the sources of discretion or as no discretion-generating at all. On the contrary, those scholars who held a broad concept of indeterminacy (as Hart or Kelsen) and who considered that discretion always arose as a consequence of the indeterminacy of law unified the senses which we have distinguished here. I want to emphasize that these two senses of indeterminacy of law refer to different things and that I think that it can be misleading to consider them jointly. In the first case, and given that indeterminacy is always relative to a case, it can be said that discretion linked to indeterminacy appears in relation to cases, that is to say, it makes no sense to speak about discretion but when referring to a specific case. The issue is to qualify states of affairs in accordance with the existing law, and this task is, therefore, past oriented. This type of indeterminacy arises in the so-called hard cases or legal gaps. The activity required here is an interpretative activity of law. However, the second sense of indeterminacy does not refer to the normative status of a specific case but to the fact that what is undetermined (in the sense that it has not been established) is the conduct that the norm requires in all cases in which it is applicable. In this sense, it is not necessary to wait for the specific cases to which the norm refers to arise in order to know that this norm originates discretion. To overcome this indeterminacy it is not enough to carry out an interpretative activity. Let us think about Kelsen’s aforementioned example. The norm could have established, leaving no room for doubt, that the administrative agency is required to adopt measures in order to avoid the disease spreading, and we might find a clear case of epidemic in which, no doubt, the norm applies. In these cases, an activity of specification or of development of existing law is necessary, an activity however which would not be appropriate

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to qualify as interpretation. The justification for these kinds of decisions is future oriented – it is directed towards the consequences. 3.3. Power and Discretion We will now move on to the notion of power. Two contexts in which this notion was linked to discretion can be distinguished. The first one was that context relative to the question of what discretion means, where it was considered that discretion consists in the power of deciding among various alternatives. The second context was that of the origin of discretion; some scholars considered here that the way to generate discretion (or at least one of the ways) was, precisely, the delegation of a certain power of decision. It is easy to appreciate that the sense in which the term “power” is used is different in the two contexts. Our starting point can be that the expression “power”10, in general, indicates the possibility or ability to do something (as when I say, “Superman has the power to fly”). At the same time, and as a specification of this general meaning, it usually indicates the possibility or ability to act, interfering in the conduct of others (as in when one says, “Lady Macbeth was eager for power”). With respect to the first of these senses, it is necessary to point out that the possibility or ability to do something can be very diverse, depending on the type of constraint or impediment which is said to be absent. For our present purpose we can distinguish here between a “material” ability or possibility, which exists when an individual does not have physical constraints or impediments when performing an action; and a “normative” ability or possibility, which makes reference to the absence of impediments or constraints originating in norms. I will call the first “factual power” and the second “deontic power”. However, the duality which exists between the deontic sense and the factual sense of “power” (and of the verb “can”) requires some clarification if we are interested – as is the case – in institutional actions, not in natural actions. Here, the equivalent of the “material” possibility to perform an action (which some have called “anankastic” or “thetic” possibility) depends on the existence of a certain type of norms, those called constitutive norms. In this way, for example, I “could not” (I have not the power to) mortgage my house if rules which constitute the legal institution of mortgage and which confer the said power on me did not exist. However, the duality between the senses of “can” is still maintained. Thus, it is possible that an action which I “can” do in this anankastic sense, I “cannot” do in the deontic sense (it is possible that the legal system forbids to mortgage the house in certain circumstances in which I find myself). 10

Here I am following Ruiz Miguel’s exposition (1983).

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Let us now return to the contexts in which the notion of power, in relation to discretion, appeared. In the first one, it was said that discretion means the “power” to (i. e., that one “can”) choose among more than one alternative. It would seem that here reference is made to “power” in the deontic sense: one would be saying that the legal system neither obliges nor prohibits the decisionmaking authority to perform the action to which we refer. Many authors who speak about “power” in this first context consider it synonymous with “permission” or “freedom” (liberty). This sense of “power” brings us back to the sense of negative freedom which was analyzed before. The second context was that relative to the origin of discretion in which the delegation of a “power” was considered to be one of the sources of discretion. I will take as a starting point the fact that in law we find, along with deontic or regulative norms, norms that are constitutive, which are those that determine how institutional results or normative changes are constituted or produced11. Among these last, we are interested in “the power-conferring rules”, whose canonical form would be: “If the state of affairs X exists, and Z performs the action or activity Y, then the institutional result R is produced”. The scope of legal discretion is precisely that of actions which are described taking as a starting point the institutional result or normative change produced by the exercise of a power. In this way, for example, one can argue about whether or not judges enjoy discretion when giving a decision, or one can speak about discretion when, for example, the administration draws up a land development plan, or when a regulation is made. Consequently, the presence of power-conferring rules will be necessary. However, these rules cannot explain, by themselves, how the discretion arises. All legal acts carried out by public authorities constitute an exercise of powers in this sense. This notion of “power” as “having authority” or “jurisdiction” does not help us to distinguish discretionary acts from those which are not. It is necessary to determine which type of power “discretionary power” is. Let us go back to the sense of “power” which we have considered as a specification of the general sense: the ability to act interfering in other’s conduct. I will take as a starting point the following definition of power in this sense: “A has power over B when A has the ability to affect B’s interests” (Atienza and Ruiz Manero, 1996, p. 15). Obviously, this is a type of asymmetric relationship since a situation of inequality is produced between the subjects, but this does not imply that the exercise of power always supposes a legitimate advantage in favor of him who possesses it (let us think here about parental authority, which has to be exercised in the interests of the children; or about the power of public authorities, whose end must be the achievement of general interests).

11

Here I am following Atienza and Ruiz Manero (1996).

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The fact that a subject has power in this sense can be due to very different factors (strength, charisma, economic resources and so on), among them the fact that there are rules which confer power upon a subject to produce a normative result, modifying in this way the normative status of certain individuals, and so affecting their interests. Nevertheless, any rule which confers power gives the ability to produce a normative result and, consequently, to affect interests. The question remains open as to what kind of power is “that which is qualified as discretionary”. The answer that has traditionally been given is “that which counters discretionary powers with ruled powers”. It is said that discretionary powers are “non ruled” powers. The thesis that I will now defend is that discretionary powers are “non ruled powers” only in the sense that they are not regulated by a specific type of norms: rules of action; but not in the sense that they are not legally regulated at all. In this sense, I do believe that there is a type of “power” that is different in the case of discretionary powers as opposed to the “ruled ones”, and this distinction lies in the way in which interests are affected in each case. This type of powers implies that their holders can unilaterally affect the interests of others, not simply by imposing the assessments or balances of interests envisaged in preexisting norms, but by introducing new evaluations of interests. 3.4. Summing up: Two Different Phenomena under the Heading “Discretion” For each of the notions analyzed I have basically distinguished two senses that can be linked to the phenomenon of discretion. When I spoke about discretion as freedom, I made a distinction between the sense connected with the idea of negative freedom (seen as permission to opt between different alternatives which are all in accordance with law) and a sense connected with the idea of positive freedom (emphasizing the fact that it is the decision-making authority who is responsible for specifying the standards guiding the decision-making act). With respect to the notion of indeterminacy, I made a distinction between indeterminacy as a phenomenon linked to the application of law to cases, which would refer to a problem of subsumption, and indeterminacy seen as the quality of certain norms which do not fix the conduct to be taken beforehand (which functioned as a delegation of a power of decision). Lastly, with respect to the notion of power and, leaving aside the sense of deontic possibility (which leads to the idea of negative freedom), I made a distinction between power in a formal sense, as the authority or possibility to produce a normative result, and power in a more material sense, which also implied the possibility of introducing new evaluations of interests into the legal system. At this point, I think a certain connection can be found between, on the one hand, the first senses distinguished for each of these three concepts and, on the

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other hand, the second senses. I think that each of these combinations makes reference to a phenomenon of a different nature and which amounts to a different sense of the term “discretion”. The first (which I will call discretion-1) is linked to the idea of freedom understood as permission or absence of impediments when choosing among different alternatives. The origin of this discretion lies in the indeterminacy of law understood as a problem in the subsumption of a case in the abstract state of facts of a norm, and the references to the idea of power only indicate here that the official which acts “in a discretionary way” is that which has the ability or formal faculty to make the decision. On the other hand, the second phenomenon (which I will call discretion-2) is linked to a sense of freedom which is closer to the idea of positive freedom (stress is put on the idea that it is the decision-making agent which is responsible for determining which course of action to adopt). Discretion-2 is related to the indeterminacy of law, understood as the fact that the conduct to be followed has not been established in the norm, and to power, in the sense that includes the possibility of introducing new evaluations of interests. We are dealing with two senses of discretion which are very different from each other. They do not even apply to the same objects, nor can they be detected from the same perspective. In “discretion-1”, both the sense of freedom and that of indeterminacy are necessarily relative to a case in such a way that this “discretion” has specific decisions (and not a power in general) as its object. Discretion is seen here as a result. However, “discretion-2” makes reference to a phenomenon which is said to be connected to certain legal powers. In discretion-2 we can perceive that a specific legal authority enjoys a discretionary power even before the specific circumstances associated with the different acts when exercising such a power arise. These two senses of discretion can be useful to us when clarifying the distinction we earlier referred to between “having discretion” and “exercising discretion”. For some authors, an authority could exercise discretion despite not having it, which sounds a little paradoxical. In my opinion, what happens here is that the term discretion does not mean the same in the two expressions. When one says that an authority can exercise discretion without having it, what is really meant is that an authority can exercise “discretion-1”, although it does not have “discretion-2”. The fact is that “discretion-1” cannot really be possessed, but at most it can be exercised; it cannot be seen as the characteristic of a certain power of decision but as a feature of a specific decision in which an authority, when applying the law to a case, on finding that the legal regulation is imprecise, “can” (may) justify more than one solution12. 12 I will not consider at this point if this is an adequate characterization of the legal adjudication activity. I will only point out that in those cases where there are several solutions “equally in accordance with law”, the problem of opting to characterize the

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Given the existence of this heterogeneity, I consider that to use a single concept of discretion which encompasses both phenomena would have as a result a very confused and distorted representation of both, and that therefore it would be better to keep them separate. Of these two senses, the one which has awoken most interest, from the theoretical point of view, is the first, at least from the perspective of “judicial” discretion. Questions such as the linguistic indeterminacy, the defeasibility of norms, etc., are discussed around it. The second phenomenon, which we have included under the heading of discretion, has not, however, been the subject of much theoretical analysis, at least from the point of view of those interested in the scope of judicial activity. Nevertheless, I believe such consideration is necessary. 4. Discretionary Powers I will now try to present some of the features which characterize this second sense of discretion. We will begin with this concept’s area of reference. If we take as a starting point the idea that discretion, in general, is a concept which requires a normative field of reference, it seems obvious that the normative framework of reference, in the case of legal discretion, is the law. I think, however, that the requirement of being in the presence of a normative context is not enough to specify the scope of discretion. Thus, for example, I can decide whether or not to get married, and if I decide to do so I can choose whom to marry; but, although there is a series of normative restrictions limiting my decision (for example, I cannot marry if I am already, or I cannot marry my brother), it would not seem very appropriate to describe this situation by saying that I have “discretion” to make a decision on this subject. I believe it only makes sense to speak about discretion when someone has been entrusted with the task of making decisions subject to the norms, decisions which, in their turn, generate normative effects in the system of reference. In other words, when someone has a power conferred upon him by the normative system of reference to make decisions “endowed with normative authority”. In this sense it could be affirmed that the scope of discretion is specified by “the running of any organization which acts on the basis of a hierarchical decision-making structure”. application of law in this way lies, in my opinion, in that resorting to the idea of negative freedom leads us to the idea of “permission”. And, on many occasions it is thought that when law grants permission it is because law is carrying out a positive (favorable) evaluation on the possibility of choice enjoyed by the subject to whom the norm is directed (in this case, the legal authority which is responsible for applying the law). However, in these cases I think that this description is inadequate: no positive (favorable) assessment is offered by the law with respect to this “possibility of choice” which the legal body is faced with.

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This implies, on the one hand, that we use the term discretionary to qualify heteronomous powers (whose exercise affects others unilaterally) but not to qualify autonomous powers, which would be those whose exercise affects their own holders (as in the case of my power to get married or to sign contracts of sale). And, on the other hand, it implies that the subjects who have this kind of powers have to operate within the hierarchical decision-making structure, which, in the case of legal discretion, entails that we are dealing with subjects that can be qualified as authorities or legal operators. The question which remains to be answered is what it is that makes us characterize powers of this type as discretionary powers; and the thesis that I support on this question is that what characterizes “discretionary” powers as opposed to the rest of the powers that legal authorities have (which are usually called “ruled” powers) is not the fact that they are not legally regulated but the fact that their regulation finds its source in a specific type of legal norms: “end norms”. To characterize this type of norms, I will take as a starting point Atienza and Ruiz Manero’s analysis of the different types of regulative norms. End norms are conceived as opposed to “action norms”. “End norms” do not determine beforehand the required conduct of the subject, they only set the end to be pursued or maximized; whereas, the “action norms” qualify an action deontically. When we are before an end norm, there are several different means which are causally adequate to achieve or to maximize the end, and the subject of the norm must choose among those means. However, this is not enough. The selection of the means, the way in which a specific state of affairs is brought about or an end is maximized, has to be considered legally relevant. I think these norms operate as “optimization commands”, in the sense that what they make obligatory is the adoption of the means that, in the light of the circumstances of the case, is considered optimal to bring about or to maximize the end set by the norm13. It is not merely a question of achieving the maximum of something, but it is also a question of optimizing the resources (means) that are available for the achievement or maximization of something. The norm does not determine beforehand what specific action (or actions) should be performed. Such determination has to be decided by the subject to whom the norm is directed, who, in light of the circumstances of the case, will have to take the decision that he deems to be most efficient in order to achieve or maximize the end sought by the “end norm”. Therefore, these norms cannot be interpreted as those that leave their subjects freedom – in the sense of permission – to choose any of the different means; rather, what they do is make the subject responsible for the selection of the means necessary and optimal to achieve or at least to 13 On the different ways of understanding the expression “optimization command”, see Larrañaga, 2001.

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maximize the end. These norms do not specify ex ante an arrangement among the different interests in conflict; they require instead, in each case, a balancing of those interests which result in the determination of their relative weights, and it is this balancing which leads to the shaping of the specific steps or measures to be taken in each case. This implies that it is up to the authority which enjoys discretionary power to determine, in light of the circumstances of each specific case, which is the optimal means for bringing about or maximizing the end sought, while damaging as little as possible other ends or values recognized or promoted by the law itself. The specific regulation imposed upon this type of powers does not imply that their exercise cannot – or should not – be subject to legal control, but it is true that this last presents certain peculiarities, given that the justification for discretionary acts is different from the justification for the exercise of the so-called “ruled powers” (those regulated by “action rules”). For the justification of discretionary acts it is not enough to construct a subsumptive syllogism containing, as its major premise, a norm that belongs to the system. From deductive reasoning one cannot produce more information than that contained in the premises, and if the norms that apply are end norms then our premises do not tell us what particular action is required. It seems clear that only when an “action rule” appears in the normative premise will the conclusion of the subsumptive reasoning indicate what action should be taken. This is why, in order to consider whether a particular action when exercising a discretionary power is justified, it is necessary to add some premises to this subsumptive reasoning. In particular, it is necessary to add factual premises about the specific circumstances of the case and about the adequacy, given these circumstances, of the means adopted to achieve the prescribed ends; but it is also necessary to add value premises that lead to the judgment that the adopted decision is that which opts for the means that are deemed to be the “best” of those available (in the sense that they not only maximize the result, but they do so with the least possible damaging effect upon the interests at stake). Consequently, it can be said that here we are no longer in the presence of an activity which is merely applying the law, but that together with this there is a law-developing and law-specifying activity (which could be seen as a “shaping” activity that is intermediate between creation and application of law). I have spoken, thus far, about discretion in general without introducing further distinctions, but I think a distinction can be established between two categories, which I will call, respectively, “technical” discretion (although in a different sense from the more widespread use of this expression) and “political” discretion. To make this distinction I use the two kinds of norms that, once again following Atienza and Ruiz Manero, can be distinguished within the end norms: “end rules” and “policies”. The difference between these two categories lies in the way in which the conditions of application are built in each of them.

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In the case of end rules, the abstract state of facts or the conditions of application are built in a “closed” way; whereas in the case of policies, the conditions of application are built in an “open” way. On this basis, I believe it is possible to make a distinction between two types of discretion, depending on whether the regulation that constrains the exercise of powers is established in the form of end rules or in the form of policies. I suggest to call these powers “technical discretion” and “political discretion”, respectively. In the first case, given that the determination of the conditions in which (when) the end has to be sought is carried out by the norm, the decision-making body has to make judgments only about the best – optimal – way to maximize the end set by the rule. In the second case, however, it is the decision-making authority who, every time it exercises its power, has to establish which is the specific end to be reached, which also implies making political judgments in the sense that these can legitimately be seen as the decision to promote the interests of certain social groups14. Traditionally, it has been considered that what characterizes political activity is precisely the fact that it defines new social goals or promotes values that have not yet been incorporated into the legal system. In this way the legislature, as a paradigm of a political body, is not subject to the existing law; rather, its function is precisely that of innovating the legal system, incorporating these new goals or values into it. However, it seems that this conception of political activity no longer fits into the new legal paradigm that contemporary constitutionalism is creating15 and which blurs the sharp distinction existing between legal bodies and political bodies. If the constitution, as a source of law, is taken seriously, and its end is considered to be that of shaping a legal system that means the realization and guarantee of constitutional rights and values, then the legislature can no longer be seen as a merely political body, only limited in its means but whose ends are left completely open. In this sense, political-legislative reasoning can be said to become legal, since some ends sought by political action are ordered by constitutions (precisely through policy standards). It is in this sense that I think that the concept of “discretion” can be considered to function in the legislative scope as well. Thus far, I have not made any remark regarding the subjects that can possess this kind of discretion I am trying to characterize. However, and based on what has gone before, it could be thought that while administrative bodies have discretion in the strict sense that we have termed technical, and law-making bodies have political discretion, judicial bodies will only enjoy “discretion-1”, not directly analyzed in this paper. But I do not think this observation is correct. As I have already said, one of the basic differences existing between, on the one 14 15

Cfr. Aguiló Regla, 2000, p. 86. Cfr. Aguiló Regla, 2001.

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hand, the discretion I have tried to analyze here and, on the other hand, the cases that are encompassed in the phenomenon of “discretion-1” lies in the fact that this last case appears in the scope of a merely law-applying function in which we find that the result of the interpretative/reconstructive process of preexisting legal authoritative materials must necessarily be an “action rule”. Nevertheless, in those cases we have considered here as discretion in a strict sense (or, discretion-2), in order to deem a specific decision justified, it is not enough to present it as the result of a subsumptive syllogism whose normative premise is previously given by the law. We are no longer, therefore, in the presence of a merely law-applying activity. In addition to this activity, another one, that of development and realization of the law, becomes necessary. One should not, moreover, forget that there are many actions carried out by administrative authorities in which the idea of a mere application of law is present, and therefore in these cases, these authorities do not enjoy discretion in a strict sense. And conversely, there are, I believe, far more cases in contemporary law than we usually think16 in which judicial authorities enjoy discretionary powers in the strict sense because they are regulated by end norms. The key to the distinction is, then, to be found in the way in which the exercise of power is regulated, and not in the type of authority that has the power. References Aguiló Regla, Josep (1997), “Independencia e imparcialidad de los jueces y argumentación jurídica”, in Isonomía, n. 6, pp. 71–83. – (2000), Teoría general de las fuentes del Derecho (y del orden jurídico), Ariel, Barcelona. – (2001), “Sobre la constitución del Estado constitucional”, in Doxa, n. 24, pp. 429– 457. Añón, M. José (1994), “Notas sobre discrecionalidad y legitimación”, in Doxa, n. 15– 16, pp. 897–911. Atienza, Manuel (1995), “Sobre el control de la discrecionalidad administrativa. Comentarios a una polémica”, in Revista Española de Derecho Administrativo, n. 85 pp. 5–25. Atienza, Manuel/Ruiz Manero, Juan (1996), Las piezas del Derecho. Una teoría de los enunciados jurídicos, Ariel, Barcelona. – (2000), Ilícitos atípicos. Sobre el abuso del derecho, el fraude de ley y la desviación de poder, Trotta, Madrid.

16 On the complexity of the activities which judges are responsible for in contemporary law, see Ost, 1993.

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Bacigalupo, Mariano (1997), La discrecionalidad administrativa (estructura normativa, control judicial y límites constitucionales de su atribución), Marcial Pons, Madrid. Barak, Aharon (1989), Judicial Discretion, transl. by Yadin Kaufmann, Yale University Press, New Haven and London (Hebrew original, 1987). Bayles, Michael D. (1990), Procedural Justice. Allocating to Individual, Kluwer Academic Publishers, Dordrecht. Bell, John (1992), “Discretionary Decision-Making: A Jurisprudential View”, in Keith Hawkins (ed.), The Uses of Discretion, Clarendon Press, Oxford, pp. 89–111. Berlin, Isaiah (1988), “Dos conceptos de libertad”, transl. by Julio Bayón, in Cuatro ensayos sobre la libertad, Alianza Editorial, Madrid, pp. 187–243 (English original, 1958). Betti, Emilio (1975), Interpretación de la ley y de los actos jurídicos, transl. by José Luis de los Mozos, Editorial Revista de Derecho Privado, Editoriales de Derecho Reunidas, Madrid. Bobbio, Norberto (1993), Igualdad y libertad, Paidós, Barcelona. Bullinger, Martin (1987), “La discrecionalidad de la administración pública”, in La Ley, n. 1381, pp. 896–911. Burton, Steven J. (1994), “Particularism, Discretion and the Rule of Law”, in Nomos XXXVI, The Rule of Law, Ian Shapiro (ed.), pp. 178–201. Chinchilla, Carmen (1989), La desviación de poder, Civitas, Madrid. Cruz Parcero, Juan A. (1999), El concepto de derecho subjetivo, Fontamara, México. Davis, Kenneth Culp (1969), Discretionary Justice. A Preliminary Inquiry, Louisiana State University Press. Desdentado Daroca, Eva (1997a), Discrecionalidad administrativa y planeamiento urbanístico, Aranzadi, Pamplona. – (1997b), Los problemas del control judicial de la discrecionalidad técnica. (Un estudio crítico de la jurisprudencia), Cívitas, Madrid. Dworkin, Ronald (1989), Los derechos en serio, transl. by Marta Guastavino, Ariel, Barcelona (English original, 1977). Fernández, Tomás Ramón (1995), “Discrecionalidad”, in Enciclopedia Jurídica Básica, vol. II, Civitas, Madrid, pp. 2517–2522. – (1999), De la arbitrariedad de la administración, Civitas, Madrid, 3rd expanded edition. Galligan, D. (1986), Discretionary Powers, Clarendon Press, Oxford. González Lagier, Daniel (1997), “Cómo hacer cosas con acciones (En torno a las normas de acción y a las normas de fin)”, in Doxa, n. 20. Guastini, Riccardo (1990), Delle fonti alle norme, G. Giappichelli editore, Torino. Hart, Herbert L. A. (1990), El concepto de Derecho, transl. by Genaro R. Carrió, ed. Abeledo-Perrot, Buenos Aires (English original, 1961).

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Hawkins, Keith (1992), “The Use of Legal Discretion. Perspectives from Law and Social Science”, in The Uses of Discretion, op. cit., pp. 11–46. Hoffmaster, B. (1982), “Understanding Judicial Discretion”, in Law and Philosophy, 1, pp. 21–55. Igartua Salaverría, Juan (1996), “Discrecionalidad, arbitrariedad y control judicial”, in Revista Vasca de Administración Pública, n. 46, pp. 95–118. – (1998), Discrecionalidad técnica, motivación y control jurisdiccional, Cívitas, Madrid. Iglesias Vila, Marisa (1999), El problema de la discreción judicial. Una aproximación al conocimiento jurídico, Centro de Estudios Políticos y Constitucionales, Madrid. Kelsen, Hans (1986), Teoría pura del Derecho, translation of the 2nd German edition by Roberto J. Vernengo (1960), UNAM, México. Larrañaga, Pablo (2001), “Responsabilidad de rol y directrices”, in Doxa, n. 24, pp. 559–577. Lempert, Richard (1992), “Discretion in a Behavioral Perspective: The case of a Public Housing Eviction Board”, in The Uses of Discretion, op. cit., pp. 185–230. Lifante Vidal, Isabel (1999a), La interpretación jurídica en la teoría del Derecho contemporánea, Centro de Estudios Políticos y Constitucionales, Madrid. – (1999b), “Interpretación y modelos de Derecho. Sobre el papel de la intención en la interpretación jurídica”, in Doxa, n. 22, Alicante, pp. 171–193. Luzzati, Claudio (1990), “Discretion and ‘Indeterminacy’ in Kelsen’s Theory of Legal Interpretation”, in Letizia Gianformaggio (ed.), Hans Kelsen’s Legal Theory. A Diachronic Point of View, G. Giappichelli editore, Torino, pp. 123–137. Moreso, José Juan (1997), La indeterminación del Derecho y la interpretación de la Constitución, Centro de Estudios Políticos y Constitucionales, Madrid. Nieto, Alejandro (2000), El arbitrio judicial, Ariel, Barcelona. Nino, Carlos S. (1985), La validez del Derecho, Astrea, Buenos Aires. Oppenheim, Felix (1961), Dimensions of Freedom. An analysis, New York, St. Martin’s Press. Ost, François (1993), “Júpiter, Hércules, Hermes: tres modelos de juez”, transl. by Isabel Lifante, in Doxa, n. 14, pp. 1691–1694. Raz, Joseph (1972), “Legal Principles and the Limits of Law”, in The Yale Law Journal, 81, n. 5, pp. 842–854. Rentería Díaz, Adrián (2000), Il labirinto della giustizia. Giudice, discrezionalità, responsabilità, FrancoAngeli, Milán. Ruiz Miguel, Alfonso (1983), “Sobre los conceptos de la libertad”, in Anuario de derechos humanos, n. 2, pp. 513–549. Sáinz Moreno, Fernando (1976), Conceptos jurídicos, interpretación y discrecionalidad administrativa, ed. Cívitas, Madrid.

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Sánchez Morón, Miguel (1994), Discrecionalidad administrativa y control judicial, Tecnos, Madrid. Waluchow, Wilfrid J. (1983), “Strong Discretion”, in The Philosophical Quarterly, vol. 33, n. 133, 1983, pp. 321–339. Wellman, C. (1988), “Judicial Discretion and Constitutional Law”, in Rechtstheorie, 19, pp. 153–165.

Iura Novit Curia, Law Crisis, and the European Building Process Gema Marcilla Córdoba 1. The Aphorism Iura Novit Curia 1.1. Normative Status The Latin aphorism iura novit curia, or “the court knows the law”, belongs to the language of jurists and is used to express a norm concerning “proof of law”1. However, at least in our legal framework, the aphorism is not included in legal texts, but is almost an unspoken or implicit norm drawn up from doctrine. As Guastini states, it is an implicit principle2. For certain legal rules the iura novit curia is valid and for others this is not the case. When iura novit curia is valid the parties do not have to argue or prove the existence and the content of legal rules, given that the court knows them. On the contrary, when the principle is not binding, the sides have to give evidence regarding existence and content because it cannot be assumed that the court knows them. Therefore, the court is not bound to take into account these rules unless the parties in question give the evidence on them. From this perspective, it could be stated that the aphorism iura novit curia is a presumption. A presumption is a rule which treats the state of facts which it refers to as a tried truth. In the proceedings the content of the presumption is treated as a proven fact, consequently exonerating the burden of proof of the facts even when they are somewhat dubious. There can be two kinds of presumptions: iuris tantum, which allows evidence to be given against the supposed state of affairs; and iuris et de iure, which does not allow the state of affairs referred to in the supposition to be refuted3. It could be said that the presumptions act as statements to assure legal decision making, thus exempting the need to prove4. 1

Ezquiaga, 2000, pp. 23 ff. Guastini, 1998, p. 475. 3 Statements containing presumptions are differentiated from fictional statements given that presumptions refer to a state of affairs based on experience factors and, therefore, are feasible or probable. However, fictional statements refer to patently false states. On these differences, vid. Gascón, 1999, pp. 146–151. On fictional state2

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The principle iura novit curia can be considered as a iuris et de iure supposition given that if the sides do not present any legal rules or they do not give evidence of them, or even if they do, there will be no evidence proceedings of the law, because it is supposed in all cases that the court knows it. Thus, the parties do not have to provide evidence of the law in the process. At the same time the court, in order to reach a final decision, is able to use any legal rule which it considers necessary, whether it has been put forward or adduced by the parties, or not5. When the principle is not valid, the sides must give evidence on what they want the court to take into consideration, verifying its existence and clarifying the contents. The supposition that the court knows the law will simplify or eliminate the probatory proceedings regarding existence and content of law. Within the Spanish legal framework, for example, the principle of iura novit curia is valid in written state law and, since joining the European Union, in European law published in the Official Journal of the European Communities6. However, the principle is not valid in customary or foreign law7. Otherwise, there does not seem to be any clear jurisprudence regarding the principle of iura novit curia in regional law and bylaws, although, as the majority doctrine states, it would have to be considered valid, especially in the case of regional law, which is precisely published in the Official State Bulletin for being known by courts8. ments, vid. the journal Doxa 3 (1986) with the contributions of Aarnio, Calvo, Hernández Marín, Marí, Moreso, and Souto. 4 Vid. Ferreres, 1997, pp. 150–160. 5 Guastini states that when a subject appeals for the court’s application of a certain law, he does not have the burden to prove the existence of such law or to give information concerning the content of this law; on the other hand, the court must apply a law known to the court regardless of whether the parties know it or not, or whether they have called for its application or not, Guastini, 1998, p. 475. 6 “The Court ought to know, according to the long tradition of jurisprudence, consequently the parties are exempt from burden of proof, only the law published in the Official State Bulletin, with an update from Community Law, published in the Official Journal of the European Communities. The remaining judicial knowledge i. e. Foreign Law, Customary Law, Regional Law, By-Law is not assumed”, Ezquiaga, 2000, p. 146. 7 Certain authors have rejected the idea that the principle iura novit curia is not considered valid in relation with foreign law, especially if the parties have adduced an internal norm which sends to the foreign legal system. As Bulygin has indicated regarding the foreign law, the judicial knowledge of law does not refer to the “ownership” of the norms to the legal system; but this knowledge does fall on the “applicability” of these foreign norms or, more precisely, on the criteria of their applicability, Bulygin, 1991, pp. 195 ff. The Italian legal order has recently taken into account this case: the State Law, May 31, 1995, n. 218, reforming the Italian system of private international law, provides in its fourteenth article that it is up to the judge to research the foreign law. 8 Ezquiaga, 2000, Ch. 4 and pp. 147–152.

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1.2. Meaning and Foundation of the Presumption “The Court Knows the Law” That the general rule of proof of law is the exoneration of proof – that is to say, there is no proceeding proof of law because it is assumed that the court knows it – and the exception being the need to prove, is tied to our legal framework, a framework governed by the jurisdictional rule of law: the rule established by the principle of iura novit curia is valid because the judge is obliged to solve the case in accordance with the law, and the knowledge of the law is an essential condition for its application9. The foundation of the presumption is one which confers credibility on the presumed fact that the court knows the law or, to be more precise, statutory law of the state, which could be understood as laws made by the ruling authority of the State, a public, written legal source. The feasibility of the presumption is supported by the idea that a judge is a highly trained professional in legal rules. From this point of view, the iura novit curia principle is connected to the concept of law and jurisdictional activity characteristic of civil law countries. If, within our legal tradition, the court could choose the grounds for any rules (that is to say, statutory law of the state, foreign law, local customs, legal precedents, equity, and so on), the credibility of the presumption “the court knows the law” would be dubious, and perhaps legal evidence would have to be given as a general rule. However, in a legal system based on the jurisdictional rule of law, in which this law is more cognizable than other legal sources given its written and public nature, and in which the court is also considered an expert on legal materials whose role is to solve cases according to this law, it is logical that the iura novit curia principle is valid as a general rule – that is to say, the presumption that the court knows the law is highly feasible. 2. The Ideological Function of the Principle Iura Novit Curia: From the “Mechanistic” Thesis of Interpretation and Application of Law to the Theory of “Discretionality” It has been highlighted that the doctrinal and jurisprudential formulation of the iura novit curia principle is understandable in the context of legalist ideology. However, once this ideology is weakened, it is questionable whether the 9 Guastini considers the obligation of knowledge of the law as an implication of the jurisdictional rule of law. The author states: “the courts are subject to the law in the sense that they are obliged to know it, and for this obvious reason knowledge of the law constitutes the condition of its application”, Guastini, 1998, p. 475. Comanducci shows the importance of judicial cognition of law with respect to the effective validity of the jurisdictional rule of law, Comanducci, 1994, pp. 111 ff.

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presumption “the court knows the law” is still feasible or not. In this case the presumption would not only have a normative or regulative role but also an ideological role, in a mythicizing or legitimizing sense of jurisdictional work, supporting the belief that the role of the jurisdiction is purely one of cognition and, as a consequence, if the court is able to master the legal texts, then it is able to solve any case always “correctly.” The normative and possible ideological role which iura novit curia plays could possibly be understood better if we draw certain parallels with another doctrinal principle, the proposal of “the rational legislator”, which also plays both roles. Its normative role is one which consists of authorizing diverse methods of interpretation; for instance, the systematic, the teleological, the analogical, the reducing of the absurd, and so on. The supposition of all these methods is that the legislator is rational in some determined sense. Given that the choice of method, or more precisely, the sense in which it is considered that the legislator has been rational, represents a choice of the legal operator, the result of the interpretation cannot be considered objective, but discretionary. Therefore, the hypothesis plays an ideological role which can be used to support the belief that the court is absolutely bound by law which has been preestablished by the legislator, even if the interpretation of law arouses doubts10. The ideological role of the aphorism iura novit curia can be connected to the legend of law which was created in the Enlightenment and codifying stage, and which lasted for the best part of the nineteenth-century Liberal State11. The idea that the court knows the law is supported in the trust in the rational qualities of the legislator and of the court. The legislator is thought to be the willful producer of clear laws, constituting a complete, coherent legal framework. The court can also be trusted due to its knowledge of legal rules, especially legal codes, and due to its use of formal, logical tools. The first split in the “Legend of Law” affected the paleopositivist theory of the cognition of law. Between the mid- and late-nineteenth century, the antiformalist stream of thinkers appeared. Their idea was that legislation is an expression of the will of the legislator, who does not always carry out his role in such a perfect manner as was thought before, therefore, contradicting the idea that the codes are legal handbooks – in other words, that legal problems are much more complex than any legislature could imagine.

10 There is an extensive bibliography dealing with the hypothesis of “the rational legislator”. In Spanish, vid. Nino, 1997, pp. 328 ff.; Casamiglia, 1986, p. 97; Calvo, 1986, pp. 113 ff.; Igartua, 1990, pp. 114 ff.; Ezquiaga, 1994, pp. 69–98. Also, vid. Nowak, 1969, pp. 65–96 and 1987; Ziembinski, 1978, pp. 405–413; Ost and Van de Kerchove, 1987, pp. 97–134. 11 Vid. Prieto Sanchís, 1998, pp. 5–45.

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Important thinkers on the subject of the interpretation and application of law who followed the antiformalist critics (such as the Topic by Viehweg, the Hermeneutic by Gadamer or by Esser, the New Rhetoric by Perelmann, and so on12) did leave the thesis of the infallibility of the court practically intact13, even though it was necessary to stop showing the jurisdictional role as one of knowledge of general rules through logical or analytical methods, moving interest away from knowledge of the norms towards the interpretation and the practical argumentation14. However, Kelsen, the most representative author from the evolved positivism or normativism, approaches the difficulties that knowledge of law present for the judiciary. Against sustained traditional legal theory, Kelsen highlights that there is not such a net difference between the making and application of law15, given that all legal acts are at the same time acts of application and creation, that is to say, acts of application of law involve a creativity margin. As Bulygin highlights, according to Kelsen, “Cognition of law is limited to the determination of the frame provided by the higher-level norm (in our case, the general norm applied by the judge), but since there are always several possible ways in which the judge can implement the general norm and so, several different individual norms he can create, and since all of them stand on an equal footing as long as they remain within the frame determined by the general norm, the act of choosing one of these possibilities is not an act of cognition, but an act of will; it is a political decision. Kelsen distinguishes sharply between cognition of law (which belongs to legal science) and creation of law (which belongs to the field of politics)”16. Therefore, the grounds for the thesis of judicial “discretionality” would be in the sceptical thesis of judicial knowledge of the law. 3. Legal Knowledge, Rule of Law and the Theory of Legal Argumentation It has been shown that the ideological or legitimising function which the iura novit curia principle plays is connected to the legendary conception of law and judiciary work. From this point of view, law is fully cognizable and the jurisdiction carries out a purely cognizable role such that if the court has all of the necessary means in terms of legal materials and interpretation of these materials, then it is able to automatically solve any particular case. Historically, this thesis was held by legal formalism. 12 13 14 15 16

Vid. García Amado, 1988; Atienza, 1991. Vid. Prieto Sanchís, 1987, pp. 54 ff. García Amado, 1986, pp. 151–182. Kelsen (1960), 1995, p. 247. Bulygin, 1995, p. 14.

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So, the ideological function of the principle of iura novit curia could be highlighted from the thesis of “discretionality,” held by positivism evolving to normativism: law cannot be known by the courts given that the application of law to concrete cases always involves some margin of creativity in which a choice between different options occurs, because this choice is permitted by the general rule, terms, or expressions. Between the cognitive theory of legal formalism (for instance), which holds the thesis of the mechanical work of the judiciary, and the sceptical thesis of legal normativism, which holds the thesis of discretionality, the moderate thesis is to be found17. The meaning of “legal knowledge of law” in the moderate thesis can perhaps be explained more effectively by making the distinction between norm-formulations (namely, the legal statements) and norms (namely, the guidelines used to solve cases) interpreting or investigating the meanings of the legal statements18. From this perspective, the court nearly always has the possibility of knowing or taking certainty of legal texts, as well as of their legal statements or norm-formulations; but, it does not necessarily have the possibility of knowing the norms given that sometimes these do not exist, but are authentic judicial decisions about the rule which solves the case and, in any case, latter interpretations of legal statements. According to the moderate thesis, the problems arise in relation to the knowledge of norms, given that the knowledge of legal statements which appear in documents does not normally seem to be a problem. Knowledge of the legal statements consists in proving that it forms part of a regulative document which appears as a declaration of a determined legal category, or law source, having been made according to the law-making rules which regulate such category or law source. This is the case when the court knows of the existence of the legal document in virtue of the official means of publication, in which case iuris tantum it is presumed that the legal statement corresponds to the act of rule making by an authorised legislator in itself and has been carried out using the established process19. The publication of regulative texts or documents in offi-

17 Moreso makes the distinction between three theses on the interpretation of law: the noble dream, the nightmare, and dreaming to be awake. He proposes the latter thesis. Vid. Moreso, 1998, pp. 183 ff. By coining the three theses, Moreso follows Hart’s work on American legal theory. Vid. Hart (1977), 1985, pp. 123 ff. 18 Regarding the knowledge of law, Guastini considers the opportunity to make a difference between norm-formulations and norms, vid Guastini, 1987, pp. 380–381. On the concept of linguistic statements and norm-formulations, vid. by the same author 1989a, p. 4. A linguistic statement is a linguistic expression with at least one meaning. A norm-formulation is a legal statement, at least one of its meanings being a legal norm. 19 Pizzorusso, 1977, pp. 87–88.

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cial gazettes, which is provided by the law for each legal source, constitutes a necessary condition of knowledge of legal statements. That is to say, two guarantees are tied to these publications: (a) the guarantee that a law-making act has been carried out and the published text shows that it has been approved by the authorized legislator, and (b) the guarantee of cognizance of the legal statements by the citizens. It is true that the publication in itself is not a guarantee of effective knowledge, but of possibility of knowledge, justifying the State requirement that citizens must obey the law, or more exactly, justifying the ignorantia iuris non escusat maxim which does not oblige citizens to know the law20, but does not allow the court to confer ignorance as legally relevant. Therefore, the greatest difficulties of judicial knowledge of law appear when it deals with establishing the meanings of legal statements, and above all when it comes to determining if it belongs on the grounds of a legal decision, that is to say, when it deals with knowing the norms21. The moderate thesis can be shown from the current distinction in legal theory between “hard cases” and “soft cases”. Soft cases can be considered as cases in which the court has no doubts in solving the specific case, or at least these doubts are not stated in the verdict, so that the verdict is based on logical or deductive arguments. In other words, soft cases are those which only make use of the so-called “internal justification”. Hard cases are those in which the suppositions put forward doubts or difficulties in reaching a verdict. The verdict makes use of any statement as regulative premise of the particular case, even though the answer in question is not clear, and therefore hard cases make use of the so-called “external justification”22. In legal decisions these difficulties could concern interpretation. This arises when the “open texture” of legal language23 makes the court doubt whether the concrete case is included in the abstract statement of the law, or when a lack of rules is noticed or verified, hence the absence of any legal framework which expresses a norm regulating the particular case, or when an antinomy is highlighted showing two different incompatible solutions for the same case24.

20

Ezquiaga, 2000, pp. 143–145. On this Ezquiaga writes: “The supposition of legal knowledge and the principle that the court is subject to the law expressed in the aphorism iura novit curia refer to above all legal norms. In short, being feasible the knowledge of legal statements due to the publication of the legal documents in Official Bulletins, the analysis deals with the possibility of knowing the norms that these text express”, Ezquiaga, 2000, p. 181. 22 As Redondo points out, the distinction between hard and soft cases is not entirely unanimous. Vid. Redondo, 1996, pp. 219–220. Here we have used the distinction in a similar meaning as Atienza, 2001, pp. 264–265. 23 Vid. Hart (1961), 1995, pp. 155 ff. 24 The semantic vagueness, or more precisely, the ambiguity of legal formulations as well as the imprecision of legal concepts, would lie at the origin of “specific hard 21

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However, although hard cases can be shown as problems in interpreting the law, it is true to say that the origin of these problems often lies in political or moral disagreements. The paradigm of hard cases with an underlying moral or political controversy are conflicts between constitutional principles25. These problems belong to a kind of norm which refers not to vague concepts, but to “essentially contested concepts”26. Finally, it can be seen that, according to the moderate thesis, the jurisdictional rule of law is not necessarily tied to effective legal knowledge of law, given that the principle must discipline the legal framework even when the jurisdiction, using legal materials, is not in a position to give always “one right answer” – that is to say, a singular verdict without giving rise to doubt. According to the moderate theory, the supposition or condition of the legitimacy of the judiciary is satisfied if the legal operators at least are in a position to be up-todate with legal statements which appear in legal texts bound by legal framework, thus basing them as grounds for decision. The moderate theory highlights a shift from legal knowledge to the justification of legal decisions within the jurisdictional rule of law. This would be the perspective of the “standard” theory of legal argumentation27. 4. Law Crisis, Normative Inflation and European Building Process Although it is inevitable to come across hard cases with important underlying disagreements, it does not mean that legal knowledge of law is not influenced by the syntactic correction and semantic precision of legal language, or by the attention paid to the systemization of legal texts. This is the very reason why studies related to “Law Crisis”28 have become so important, for they show the inadequacies of legislation, above all, if the reference used is the original Liberal State model of legislation. From this perspective, the lack of clarity, precision, generality, and systematic nature, as well as the overabundance of rules, bears negatively on legal knowledge of law, or cases”; whereas lack of rules, inconsistencies, and incoherences of rules are at the root of the “generic hard cases”, Navarro, 1993, p. 262. 25 Vid Prieto Sanchís, 2000, pp. 471–473. 26 As Ferreres points out, the expression “essentially contested concepts”, coined by Gallie, 1955–1956, refers to a kind of semantic imprecision different from semantic or linguistic vagueness. More precisely, in essentially contested concepts, the differences are the result of a previous moral controversy, which does not affect marginal cases, but central or paradigmatic suppositions in such a way that the controversy over the definition can be considered essential in itself, Ferreres, 1997, pp. 24–27. Ferreres follows on from Waldron, 1994, pp. 526–540. 27 Alexy (1978), 1989; Atienza, 1991; García Figueroa, 1998, pp. 327 ff. 28 Vid. for instance Hierro, 1996, pp. 287 ff.; Prieto Sanchís, 1998, pp. 5–45; Laporta, 1999, pp. 321 ff.; Taruffo, 1999, pp. 311 ff.

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abates the feasibility of the state of affairs which the maxim iura novit curia refers to29. The studies carried out on law crisis highlight, on the one hand, the consequences deriving from inadequacies in legislative rationality with regards to legal knowledge as well as to the uncertainty of law held by citizens, and, on the other hand, the emphasis on the factors which have a negative bearing on the quality of laws. One of the symptoms of the crisis is the great number of rules made, thus ruling out the ancient quality of scarcity. The increase in law making is linked to the intervention of the social State and to the degeneration in the sense of State caused by political decentralization, together with the recognition of lawmaking bodies outside the country, or within the boundaries of the country itself. The European building process has seen a rise in the number of rules made given that Community patrimony (acquis communautaire), made up of foundation treaties and other agreements with similar status (i. e., primary legislation) and regulations, directives, decisions, recommendations, and opinions (i. e., secondary legislation) co-exist in each Member State with each state’s own lawmaking sources. The Member States produce a huge number of laws, not only because they have the exclusive role or power of dealing with their own legal affairs, but also because of the fact that law making becomes even more necessary in order to put European regulations in practice. This is often criticized using terms such as “overproduction”, “inflation”, “contamination”, “uncontrolled growth of law making,” and so on30. Using these terms we can see that the law-making process has been blown out of all proportion. Both the ordinary citizen as well as legal professionals have been overcome by legal reforms and new legal features, making it virtually impossible to know all of these new legal texts, let alone have a good, sound idea of what they actually say, innovate, modify, or abolish. The greater number of texts or law-making documents that exist, and the faster these legislative changes occur, the poorer the quality tends to be from a 29 According to Capella, the cognition of the law (and, consequently, certainty not as a mere foresight of legal solutions, but as the foreseeable result of the court bound by preexisting law) is increasingly improbable as a consequence of changes linked to the interventionist State: “The legal principle characteristic of modernness of which the court knows the law, a principle which acted as a presumption of jurisdictional activity – in which parties are exonerated from providing applicable regulations in front of the jurisdiction – which is a probable true to reality, becomes increasingly improbable when we speak of the interventionist State. This principle continues to be legally valid, but it cannot be regarded as a realistic principle”, Capella, 1997, p. 209. 30 Peréz Luño refers to the uncontrolled growth of law making as “legal hypertrophy” or “legal pollution”, Perez Luño, 1993, p. 80.

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linguistic point of view, given that the syntactical correction and precise use of terms are incompatible with haste. Also, the greater the number of law-making texts that exist, the more difficult it is to achieve coherence and cohesion within the legal framework. In short, the problem of cognition of law has been generally seen as a problem of the courts, giving rise to studies of methods of application and interpretation of law. Only recently has it been dealt with as a question concerning legislators, giving rise to a new legislative science31. The European building process could be a good incentive to develop new legislative techniques which favor the cognition of law32. 5. The Quality of Laws and Legislative Techniques The matter of judicial knowledge of law can be dealt with not only in terms of problems in its interpretation and court application but also from the point of view of the prevention of such problems in law making33. In reality, the first stance has dominated since the times of legal positivism up until recent times, whereas the second stance was adopted by the philosophy of the Enlightenment, shown by diverse legislative techniques put in practice by codifying law. Nowadays, given that the legislator’s stance has been taken up again, we can talk of the “revitalization” of the science of legislation34. It is true to say that the philosophy of the Enlightenment and the codifying movement overestimated the possibilities of rational legislation, trusting in simplicity, clarity, abstraction, etc. of the legislation being the panacea of certainty and foresight of law by the citizens, and of the effective validity on the separation of powers and the jurisdictional rule of law. It does not seem to be considered that legislation – although it can be seen as an instrument of political, economic, or social rationalization – is fundamentally an expression of political will, and is not always compatible with the features needed in rational legislation, not even with those referring to its form, such as the necessity of clarity, precision, and coherence. Also, the science of Enlightenment legislation35 does not seem to be taken into consideration even when the legislative enterprise 31 Atienza, 1997; García Amado, 2000, pp. 299 ff. See commentary on recent contributions to the theory of law making in my work, Marcilla, 2000, pp. 93 ff. 32 Vid. Kellermann, A. E., Ciarvarinni, and G., Jacobs, S. H., 1998. 33 Bulygin, 1991, pp. 409 ff.; Guastini, 1985, 1988 and 1989b; Iturralde de Sesma, 1989, pp. 225 ff. 34 Prieto Sanchís, 1998, p. 5 (note 2). 35 Filangeri used this as a title for one of his works, Filangeri (1780–1785), 1821. Prieto Sanchís and Zapatero show the legal philosophy of the Enlightenment as a starting point in the quality of laws, Prieto Sanchís, 1998, and Zapatero, 1994, 1998, and 2000, pp. XVIII–XXIV.

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could follow a general pattern of quality, arousing problems of interpretation, i. e., hard cases. The clarification of both frustrated draughts of Enlightenment legislation could be considered as a good base for arguing the reach and the limitations of the “new science of legislation”36. Regarding limitations which could arise at the interpreting and application of law stages, we have already mentioned the moderate theory of jurisdictional cognition of law, and the inevitable appearance of hard cases, not only due to problems of interpretation, but also due to political or moral disagreements. Therefore, we need now to deal with the limitations of legislative techniques which occur. Legislative techniques are shown to favor the knowledge of law – or, more exactly, the cognition of legal statements and rules – and through this the certainty of law. The term “favor” is emphasized, given that the knowledge cannot be assured37. Sometimes it is the legislature which cannot or does not want to transform its own political will into a coherent, regulative message, giving no rise for doubt and consistent within a legal framework. The legislature’s use of legislative techniques requires a series of conditions (i. e., time, specialists, etc.) – means which they do not always dispose of. Even when the legislator disposes of these means, it has to be considered that he may not want to make use of them: it is confusing to consider that the legislator can or wants to change his behavior with regard to legislative techniques, given that the idea can only be described metaphorically, as in actual fact laws come from a varying collective body. But in regard to the aim of the legislator, there is something more important: legislation can be seen as a way of organizing or enforcing power, or as a coercion of those who hold power in a stable way38. It is, therefore, understandable that not always the legislative will is to transmit a clear, regulative message or a message in line with the rest of the system’s rules; but sometimes their aim is to delegate the final decision in the courts, giving the impression that a social problem has been solved, or to confirm the generalized public obedience, or to reach an agreement with other parties or social powers, so that the law, instead of a clear, coherent text, becomes a host of diverse questions showing the transiency of all the parties involved. It is said that legislation plays a symbolic role when the aim of the legislator is not to reach any effect, although he states one, or when his aim is to produce a different effect from the effect which has been stated. That happens, for example, when the legislator declares an objective, but actually is unable to estab36 37 38

Vid. Bankowski et al., 1988; Luzzati, 1999, ch. 7. Vid. F. J. Ezquiaga, 2000, p. 190. Vid. Prieto Sanchís, 1997, p. 321.

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lish the necessary conditions for this to occur; or, when the legislator does not state any clear aim, because he only aims at achieving an agreement between different political forces on very several matters, which are not always made public. In short, when symbolic legislation takes place, legislative techniques are transformed even into a problem for the legislator. Facing the problem of symbolic legislation, it could be said that it is an exceptional case, given that the general basic intention of the legislator is to direct behavior, and in order to do so tries to produce texts in line with valid linguistic conventions. Also, in a Constitutional State the legislator cannot act out of his own volition and is ultimately limited by sincerity. Due to this fact, perhaps it is necessary that legislative techniques not be detained by the features of shape of the laws, as linguistic expression, or systematic nature39, but that the aims be widened at the rationalisation of training of political will, the way in which it could be proposed by the so-called “methodical of the legislation”40. References Aarnio, A. (1986), “Persona jurídica, ¿una ficción?”, in Doxa 3. Alexy, R. (1978), Teoría de la argumentación jurídica, transl. by Atienza M. and Espejo, I., Madrid, CEC, 1989; in English, A Theory of Legal Argumentation, transl. By Adler, R. and MacCormick, N., Oxford University Press, 1989. Atienza, M. (1991), Las razones del Derecho. Teorías de la argumentación jurídica, Madrid, CEC. – (1997), Contribución a una teoría de la legislación, Madrid, Civitas. – (2001), El sentido del Derecho, Barcelona, Ariel. Bankowski, Z. et al. (1988), La science de la legislation, Avant-propos de Amselek, P., Propos final par Wroblewski, J., Paris, Presses Universitaries de France. Bulygin, E. (1991a), “Teoría y técnica de legislación”, in Alchourrón, C. E. and Bulygin, E.: Análisis lógico y Derecho, Madrid, CEC. – (1991b), “Tiempo y validez”, in Alchourrón, C. E. and Bulygin. E., Análisis lógico y Derecho, Madrid, CEC. – (1995), “Cognition and Interpretation of Law”, in Gianformaggio, L. and Paulson, S. (ed.), Cognition and Interpretation of Law, Torino, Giappichelli. Calvo, M. (1986), “La voluntad del legislador: genealogía de una ficción hermenéutica”, in Doxa 3. 39 Works by Gretel (Group of Studies on Legislative Technique) are representative of this point of view, vid. Gretel, 1986 and 1989. 40 Noll, 1973; Öhlinger, 1982; Karpen, 1989, pp. 67–70 and Karpen, 1986, pp. 5– 32; Galiana Saura, 2001.

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Capella, J. R. (1997), Fruta prohibida: una aproximación hitorico-teorética al estudio delDerecho y del Estado, Madrid, Trotta. Casamiglia, A. (1986), Introdución a la ciencia jurídica, Barcelona, Ariel. Comanducci, P. (1994), “Aarnio ed il problema della certezza del diritto”, in Analisi e diritto. Ezquiaga, F. J. (1994), “Argumentos interpretativos y el postulado del legislador racional”, in Isonomía 1. – (2000), “Iura novit curia” y aplicación judicial del Derecho, Valladolid, Lex Nova. Ferreres, V. (1997), Justicia constitucional y democracia, Madrid, CEPC, 1997. Filangeri, G. (1921), Ciencia de la legislación (1780–1785), spanish trans. by J. De Ribera, Madrid, Villalpando. Galiana Saura, A. (2001), “La metódica de la legislación: el proceso de formación de la voluntad legislativa”, (PhD disertation), Tarragona. Gallie, W. B. (1955–56), “Essentially contested questions”, in Proceedings of the Aristotelian Society, 167. García Amado, J. A. (1986), “Del método jurídico a las teorías de la argumentación”, in Anuario de Filosofía del Derecho. – (1988), Teorías de la tópica jurídica, Madrid, Civitas. – (2000), “Razón práctica y teoría de la legislación”, in Derechos y Libertades. Instituto Bartolomé de las Casas Journal, 9. García Figueroa, A. (1998), Principios y positivismo jurídico, Madrid, CEPC. Gascón, M. (1999), Los hechos en el derecho. Bases argumentales de la prueba, Madrid, Marcial Pons. Gretel (Group of Studies on Legislative Technique) (1986), La forma de las leyes (10 estudios de técnica legislativa), Barcelona, Bosch. – (1989), Curso de técnica legislativa. Serie de Técnica Legislativa I, Madrid, CEC. Guastini, R. (1985), “Questioni di tecnica legislativa”, in Le Regioni 2–3. – (1987), “In tema di ‘conoscenza del diritto’ ”, in Il foro italiano 7–8. – (1988), “Redazione e interpretazione dei documenti normativi”, in VV.AA., Lezioni di tecnica legislativa, a cura di Bartole, S., Padova, CEDAM. – (1989a), “Disposizione vs Norma”, in Giurisprudenza costituzionale. – (1989b), Produzione e applicazione del diritto. Lezioni sulle “preleggi”2, Torino, Giappichelli. – (1998), Teoria e dogmatica delle fonti, Milano, Giuffrè, 1998. Hart, H. L. A. (1961), El concepto de Derecho (1961), 2ª ed., spanish trans. by Carrió, G. R., Buenos Aires, Abeledo-Perrot, 1995.

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– (1977), “American Jurisprudence through English Eyes: The Nightmare and the Noble Dream” in Id.: Essays in Jurisprudence and Philosophy, Oxford, Clarendon Press, 1985. Hernández Marín, R. (1986), “Ficciones jurídicas”, in Doxa 3. Hierro, L. (1996), “El imperio de la ley y la crisis dela ley”, in Doxa 19. Igartua, J. (1990), “El postulado del legislador racional”, in Revista Vasca de la Administración Pública 28. Iturralde Sesma, V. (1989), “Cuestiones de técnica legislativa”, in Revista Vasca de Administración Pública 24. Karpen, U. (1986), “Zum gegenwärtigen Stand der Gesetzgebungslehre in der Bundesrepublik Deutschland”, in Zeitschrift für Gesetzgebung 1. – (1989), “Gesetzesgestaltung und Gesetzesanwendung im Leistungsrecht”, in Gesetzgebungs-, Verwaltungs und Rechtsprechungslehre. Beiträge zur Entwicklung einer Regelungstheorie, Baden-Baden, Nomos, Verlagsgesellschaft. Kellermann, A. E./Ciarvarinni, G./Jacobs, S. H. (eds.) (1998), Improving the Quality of Legislation in Europe, The Hague, Boston, London, Kluver Law International. Kelsen, H. (1960), Teoría pura del derecho, spanish trans. by Vernengo, R. J., México, Porrúa, 1995. Laporta, F. (1999), “Materiales para una reflexión sobre la racionalidad y crisis de la ley”, in Doxa 22. Luzzati, C. (1999), L’ interprete e il legislatore. Saggio sulla certezza del diritto, Milano, Giuffrè. Marcilla, G. (2000), “Sobre la necesidad de una nueva ciencia de la legislación”, in Carbonell, M. and Pedroza de la Llave, S. Th. (coords.), Elementos de técnica legislativa, México, UNAM. Marí, E. E. (1986), “Racionalidad e imaginario social en el discurso del orden”, in Doxa 3. Moreso, J. J. (1986), “Las ficciones en Jeremy Bentham. El método de la paráfrasis”, in Doxa 3. – (1998: La indeterminación del Derecho y la interpretación de la Constitución, Madrid, CEPC. Navarro, P. (1993), “Sistema jurídico, casos dificiles y conocimiento del Derecho”, in Doxa 14. Nino, C. S. (1997), Introducción al análisis del Derecho8, Barcelona, Ariel. Noll, P. (1973), Gesetzgebungslehre, Hamburg, Rowohlt. Nowak, L. (1969), “De la rationalité du legislateur comme élément de l’interpretation juridique”, in Logique et analyse 45. – (1987), “A concept of Rational Legislator”, in Ziembinski, Z. (ed.), Polish Contributions to Theory and Philosophy of Law, Amsterdam.

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Öhlinger, Th. (1982), Methodik der Gesetzgebungslehre, Wien/New York, SpringerVerlag. Ost, F./Van de Kerchove, M. (1987), “Rationalité et souverainete du législateur. Paradigmes de la dogmátique juridique”, in Jalons por une théorie critique du droit, Brussels, Publications des Facultés universiraries Saint-Louis. Perez Luño, A. E. (1993), El desbordamiento de las fuentes del Derecho. Discurso de ingreso en la Real Academia Sevillana de Legislación y Jurisprudencia, Sevilla. Pizzorusso, A. (1977), Fonti del diritto, Art. 1–9. Disp. Prel., Bologna, Zanichelli Ed. Prieto Sanchís, L. (1987), Ideología e interpretación jurídica, Madrid, Tecnos. – (1997), “La costumbre como fuente del Derecho”, in J. Betegón et al., Lecciones de teoría del Derecho, Madrid, McGraw-Hill. – (1998), “Del mito a la decadencia de la ley. La ley en el Estado Constitucional”, in Ley, principios, derechos, Madrid, Dykinson. – (2000), “Observaciones sobre las antinomias y el criterio de ponderación”, in ‘Sobre el razonamiento jurídico’, in Revista de Ciencias Sociales de la Uiversidad de Valparaíso 45. Redondo, M. C. (1996), La noción de razón parala acción en el análisis jurídico, Madrid, CEC. Souto, C. (1986), “La ficción de la autosuficiencia en los saberes jurídicos fundamentales”, in Doxa 3. Taruffo, M. (1999), “Racionalidad y crisis de la ley procesal”, in Doxa 22. Waldron, J. (1994), “Vagueness in Law and Language: Some Philosophical Issues”, in California Law Review 509. Zapatero, V. (1994), “De la jurisprudencia a la legislación”, in Doxa 15–16. – (1998), “El club de los nomófilos”, in Cuadernos de Derecho Público 3. – (2000), “El arte de la legislar”, Preliminary study on Bentham’s work, Nomografía o el arte de redactar leyes (1843), spanish trans. by Pabón, C., Madrid, CEPC. Ziembinski, Z. (1978), “La notion de rationalité du législateur”, in Archives de philosophie du droit.

Sovereignty, Legal Pluralism, and Fundamental Rights Italian Jurisprudence and European Integration (1964–1973) Giulio Itzcovich 1. Introduction – National Legal Communities and European Integration During the Sixties and the Seventies, the European Court of Justice (ECJ) played a constituent role in the process of European integration by drawing up the constitutional framework of today’s European Union. The best-known and most notable doctrines developed by the ECJ are direct effect and supremacy of Community law, implied powers of the European Communities, vertical direct effect of directives, and the doctrine of human rights. The activism of the Court involved almost every field of Community action and broadly increased the scope of EC normative and judicial powers.1 The role of the Court has been harshly criticized or proudly claimed,2 but more than the development of such constitutional doctrines by a supranational court, what now seems surprising is their acceptance by the national courts of the Member States.3 After all, such doctrines had to be applied within the do1 Case 26/62, Van Gend en Loos [1963] ECR 1 (direct effect); case 6/64 Costa v. ENEL [1964] ECR 585 (supremacy over national statutes); case 106/77 Simmenthal [1978] ECR 629 (“immediacy” of supremacy); case 11/70, Internationale Handelsgesellschaft, [1970] ECR 1125 (supremacy over national constitutions); case 22/70 Commission v Council [1971] ECR 263, case 3/76 Kramer [1976] ECR 1279, opinion 1/ 76 [1977] ECR 741 (pre-emption, implied powers, and treaty-making power); case 9/ 70 Grad [1970] ECR 825 (direct effect of decisions); case 33/70 SACE [1970] ECR 1213, case 41/74 Van Duyn [1974] ECR 1337, case 148/78 Ratti [1979] ECR 1629 (vertical direct effect of directives). See generally Weiler 1999, and on the widening of EC material competencies during the 1970s, see Tizzano 1981. The doctrine of human rights and the invention of the “common constitutional traditions” (case 29/69 Stauder [1969] ECR 419, case 4/73 Nold [1974] ECR 491) are often referred to as an important achievement: “the apex of the activist season of the ECJ” (Mancini 1990, p. 234; see also Weiler 1999, pp. 23 ff., 107 ff.). On the “uses of rights” in ECJ jurisprudence, see the discussion between Coppel and O’Neill 1992 and Weiler and Lockhart 1995. 2 Cf. Rasmussen 1986 and Mancini 1989, pp. 595 ff. 3 This problem animates some interesting approaches to the theory of European legal integration from the viewpoint of political science. See Alter 2001 and, gener-

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mestic legal orders of the Member States: the “constitutionalization” of EC treaties resulted from the implementation of EC law as well as from the landmark decisions of the ECJ. Generally speaking, the legal communities of the Members States understood European integration to be a political opportunity or, at least, a political necessity, and in any case an event that could not simply be refuted through legal argumentation and constitutional law. European integration was sometimes welcomed as an occasion to implement a more complex legal adjudication system “creating individual rights which national courts must protect” – as the ECJ ruled in its famous Van Gend en Loos decision.4 At the time, the famous slogan “Community of law” or “Community under the rule of law” (Rechtsgemeinschaft, Comunità di diritto, etc.) expressed this comprehension of the tasks underlying supremacy of EC law as well as the search for a strong link and continuity between EC jurists and national legal communities.5 In the case of Italy, the acceptance of direct effect and supremacy of EC law was prepared by an impressively intensive legal literature. Writing in 1978 about the state of affairs of Italian doctrine on the EC, the internationalist Luigi Condorelli described a “. . . research field affected by a serious and apparently unrestrainable disease: logorrhoea. . . . The endless stream of generally hagiographic and iterative words . . . flows toward the broad swamp of the relationship between EC law and domestic law. Everywhere in this swamp, the same concept always emerges: the primacy . . . of EC law.”6 The picture of non-compliance and curbing of Italian courts, which has dominated less recent literature, can mostly be considered a self-representation of the European legal community of those years, a lamentation for European scholars immediately operative as injunction and legal argument. In the “foundational period” of the European constitution, national courts openly challenging the legitimacy of the constitutional transformations did not represent the main obstacle to the constitutionalization of EC treaties. Open inter-court conflict often provided an opportunity for several landmark, pro-European decisions by the Italian and German constitutional courts.7 Ignorance and disinterest by national legal communities were much more insidious. ally, Slaughter, Stone, Sweet, and Weiler (eds.) 1998, especially Alter 1998, Mattli, and Slaughter 1998. See also Schwarze (ed.) 2001. 4 Case 26/62, Van Gend en Loos [1963] ECR 1. 5 The phrase “Community of law”, coined by Walter Hallstein, is now common in the public discourse on Europe. It recalls the rule of law, the supremacy of EC law, and the ECJ’s constitutional role. 6 Condorelli 1978, p. 669. 7 See, for instance, the ordinances originating Ccost n. 98/1965 (below § 3.), and Ccost, n. 183/1973 (below § 4.). In Germany, the ordinances originating BVerfGE 22, 152 [1967], and BVerfGE 22, 293 [1967].

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The intergovernmentalist approaches to European integration theory emphasize also the role of national governments’ interests.8 Even the Italian Corte costituzionale (Ccost) in the Frontini case [1973] recalled that those “limitations” or “transfers” of sovereignty accepted by the Italian government actually meant an increase in the political power of Italy by means of the EC. Legal integration modified the constitutional balance between parliament and government in favour of the governments. National governments could adopt EC treaties and regulations that prevailed over parliamentary statutes and that could even supersede the national constitution. Member States increased their scope of regulatory and judicial powers. As Weiler pointed out, even during critical years for European integration as a political project, “normative” supranationalism (related to the relationships and hierarchy between EC law and domestic law) was empowered by the courts, indirectly increasing the powers of the governments, while “decisional” supranationalism (related to the institutional framework and decision-making process of the Community) was halted.9 The “quiet” role of the Member States as interlocutors of the ECJ10 can perhaps be described as the presence of an absence, certainly an important absence before the Court as it was developing the normative supranationalism. Supported by the national legal communities and accepted by the governments of the Member States, the ECJ was not alone when it fashioned the constitutional basis of contemporary Europe. But we can still appreciate the impressive opening of Eric Stein’s 1981 article about “Lawyers, Judges, and the Making of a Transnational Constitution”: in the “fairyland of Duchy”, the European court could create “a constitutional framework for a federal-type structure in Europe” because it was “blessed, until recently, with benign neglect by the powers that be and the mass media”.11 Thanks to the national legal communities and to the convergence of governmental and private interests linked to the institution of the common market, the older process of legal integration went on in a technocratic way: apparently nobody cared about the acceleration of the process of legal integration obtained by a closed and aggressive legal community led by the ECJ.12 At the time this was not problematic at all. 8

Garrett, Kelemen and Schulz 1998. See Weiler 1981 on the diverging trends of normative and decisional supranationalism. Nicola Catalano, former judge at the ECJ, proposed a similar distinction. The terms are inverted in a characteristic (legal) way: “formal [i. e. decisional] supranationalism” concerns the “purely procedural” aspect of EC activities (the majority voting rejected by France through the Luxembourg Compromise of 1965). “Substantial [i. e. normative] supranationalism” is the direct effect, “often – when it is convenient – underestimated in Italy”. Catalano was referring to the Costa decision of the Italian constitutional court (n. 14/1964), “which has done us great harm in the Community circles” (Catalano 1973, 61). 10 On a “quiet revolution”, see Weiler 1994. 11 Stein 1981, p. 1. 9

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The situation began to change during the Eighties. After the European Act and the Maastricht Treaty, a set of political questions, expectations, and interests began to gravitate around European legal integration. The process could no longer be managed “behind closed doors”. At a certain level of institutional complexity, an effective exercise of decision-making powers as well as the possibility of the deepening of integration required the control – and therefore also the attention – of other relevant actors.13 In order to appreciate the changing dialogue between ECJ and national courts, in the next paragraphs I give a close reading first of Italian case law on the EC (1964–1973). The historical account provides an insight into the functionalist or technocratic period of European integration from the perspective of the legal community of one Member State. It points out the three main instruments developed by the Corte costituzionale in order to manage (legitimate and control) the constitutional process. First, exegesis of Article 11 Costituzione as norm on the proceeding of execution of EC treaties. This reading of Article 11 Cost. permitted the ratification of the European Act and of the Treaty on European Union by means of ordinary statutes without any formal amendment of the Constitution. Second, “legal pluralism” – as distinguished from the dualist as well as from the monist legal theory on the relationships between international/EC law and domestic law. The move from dualism to pluralism can be regarded as the major change that occurred in the legal doctrine of sovereignty as a direct consequence of European integration. Legal pluralism provided a dogmatic instrument in order to face the constitutional problems arising from the process of legal integration. It allowed the Court to reject the issues on constitutionality concerning EC law, and it allowed the Court to recognize the immediacy of supremacy in the decision Granital [1984]. Third, “counter-limits doctrine”. Italian legal doctrine uses the expression controlimiti (limits to the limitations of sovereignty accepted by Italy) to indicate the issue of some domestic boundaries concerning EC decision-making power. According to the counter-limits doctrine, EC acts that infringe fundamental rights or exceed the powers transferred are not applicable in the domestic legal order, and national courts can autonomously sanction the violation of such constitutional limits. Starting from the Sixties, the counter-limits gradually 12 For a sociological analysis of this community, see Schepel and Wesseling 1997. Suggestions in Rasmussen 1986, pp. 147 ff., pp. 264 ff. 13 In the Maastricht-Urteil, BVerfGE 89, 155 [1993], the German constitutional court stated that the premises of further empowerment of the EU are the creation of a European public opinion, European media, and European public discourse about the limits and purposes of the exercise of power (if not the creation of a common language and European Staatsvolk).

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emerged in German and Italian doctrine and jurisprudence. In the Nineties and after the Maastricht Treaty, they were applied in crucial legal cases and proclaimed in some national constitutions.14 The pluralist doctrine, however original, was in line with the systematic approach of the legal culture of the Sixties. Only through the counter-limits doctrine was the experience of European integration forcing Italian legal culture to give up that approach and to develop new conceptual instruments. The dogmatic tradition provided a way of legal argument that was flexible, but opaque. In the longer term, it failed to legitimate and control the constitutional transformations occurring. To face a growing complexity of the social and institutional environment, the legal reasoning itself had to become more complex; it had to be more flexible and more capable of being modulated; it had to be more persuasive and more pervasive. In case of need, it had to implement and intervene in a dialogue between other relevant actors in the public sphere in order to justify and supervise their decision-making activity. Such requirements would be met only by developing the language of fundamental rights, supreme principles, and their balancing. For Italian and German constitutional courts, such requirements led the development of the counterlimits doctrine. 2. Costa – Exegesis of Article 11 of the Constitution Italian legal doctrine often uses the phrases cammino comunitario (Community progress) or braccio di ferro (arm-wrestling, confrontation) to describe the relationship between the ECJ and the Italian Corte costituzionale during the period of the constitutionalization of European treaties.15 Since the Costa case in 1964 – the beginning of the confrontation with the ECJ – until the reconciliation in 1984, the evolution of the Ccost case law on the EC would have been the history of its resistance and gradual giving in to the ECJ. However, the metaphors of this progress and arm-wrestling are misleading.16 Although suggestive, they express the way Italian legal doctrine tended to dramatize the dia14 Surveys in Closa 2002; Lanaerts and van Nuffel 1999, pp. 514 ff.; Hartley 1999, pp. 233 ff. 15 The phrase Cammino comunitario was coined by P. Barile 1973. 16 The most important steps can be briefly summarized. From 1964 to 1973, the Court denied the supremacy of EC law over subsequent national statutes. The provisions of EC treaties and regulations had the same “ordinary” rank as the statutes giving execution to the treaties (n. 14/1964). From 1973 to 1984, the Court recognized the supremacy of EC law (n. 183/1973) but denied that national courts could directly decide a conflict between EC law and subsequent national statutes (n. 232/1975): when the question arises, the judge has to suspend the proceeding and refer the question to the Ccost. Since 1984, the Court accepts the doctrine of the “immediacy” of supremacy developed by the ECJ in the decision Simmenthal, 1978; it concedes that

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logue between the Ccost and the ECJ in the “foundational period” of European constitution. Reading closely, the Italian jurisprudence seems less coherent and conflictual. In the Costa case,17 Flamino Costa, a lawyer in Milan, brought an action before the Giudice conciliatore. He claimed that the nationalization of electric power was unconstitutional on several grounds, including the violation of the European Economic Community (EEC) Treaty. According to Costa, the breach of the EEC Treaty implied a violation of Article 11 Costituzione, which states: “Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations”. It is worth noting that Costa, from a legal a point of view, had no right to sue, neither as a shareholder of one of the nationalized companies, nor as a debtor of an electricity bill amounting to a modest amount (1,925 lire).18 Due to a magistrate of the lowest court, an open-and-shut legal case originated one of the most famous decisions of the judge-made European constitution – a prompt ruling by the ECJ on the supremacy of EC law19 in reply to the decision of the Italian court. Of course, at the time the ECJ used to rule on any preliminary questions, whatever the plea, but the Ccost could easily have avoided the case. However, it seized the opportunity to express its legal point of view on the economic and social policy of the new center-left government. By interpreting the “common good” (utilità generale) clause of Article 43 Cost., the Court justified and limited the powers of public direction of the economy by means of nationalization laws. Furthermore, the Ccost laid the first foundation of its jurisprudence on the EC. In the Costa case the validity of the statute giving execution to the EEC Treaty was not in question. However, the court ruled that “according to Article 11 . . . it is possible to draw up treaties imposing limits to sovereignty and it is allowed to give execution to them by means of ordinary statutes”. Such treaties do not require a constitutional bill to be binding in the Italian legal system. The statute giving execution to the EEC Treaty is procedurally valid, in spite of its “ordinary” and not “constitutional” rank in the domestic normative hierarchy. national judges have to directly apply EC law instead of the previous or subsequent national law (n. 170/1984). 17 Ccost n. 183/1973, in Giur. cost., 1973, 2401. 18 As remarked by the defence of the nationalized company, Edisonvolta, Costa could have settled his debt by paying ENEL, even if its foundation was unconstitutional (Article 1189 Italian civil code). Preliminary rulings can be referred to the Ccost only if “relevant”, i. e. when the lawsuit cannot be adjudged without recourse to the challenged law. 19 Case 6/64 Costa [1964].

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According to his reading, Article 11 Cost. has to be understood as a norm on the proceeding of execution of EC treaties.20 The President of the Ccost, Gaspare Ambrosini, had already sustained this interpretation of Article 11 Cost. during the parliamentary discussion on the ratification of the European Coal and Steel Community (ECSC) Treaty.21 At that time, he was the speaker for the majority (Christian Democrats). It was a questionable and later often-questioned interpretation, but in the Fifties the opposition (Italian Socialist Party and Italian Communist Party) precluded the adoption of a constitutional statute. Since the Costa decision, this reading of Article 11 Cost. steadily prevailed in Italian constitutional case law and doctrine. Because of this interpretation, the ratification of every subsequent European treaty, including the Treaty of Maastricht, was adopted by means of ordinary statutes without any formal amendment of the Constitution.22 However, the Italian Court in the Costa case also asserted that Article 11 did not attribute a superior rank to the EEC Treaty: “There is no doubt that the State must honour its obligations or that the treaty has the binding force given to it by the statute which ratified it. But since the imperium of laws subsequent to that law must be maintained, any possible conflict between the two cannot raise questions of constitutionality”. Lex posterior derogat legi prori, subsequent ordinary statutes prevail over EC law. This rule gave rise to the harshest condemnations from EC lawyers.23 During the Costa case, the General Advocate Lagrange warned of the “disastrous consequences” of the Italian judgement and reminded the Court of the “grave apprehension” of the Commission. According to Benedetto Conforti, the leitmotif of the congress of EC law in Bruges, in April 1965, was “a dramatic and sometimes emotional appeal” against the Italian Costa rule.24 An inquiry by the EC Parliament was begun, and in February 1966 a meeting of law professors organized by the Italian office of the EC and by a non-government association adopted a “Resolution” advocating the supremacy of EC law.25 20 The norms on proceeding in the strict sense establish the normative authorities and the normative proceedings. The norms on proceeding in the broad sense limit or direct the exercise of the normative authority with regard to the content of the decision-making activity (Guastini 1998, pp. 43 ff.). The Costa decision of the Ccost interpreted Article 11 as a norm on proceeding in the strict sense. After Frontini, the Court also interprets Article 11 as a norm on proceeding in the broad sense, i. e. imposing material limits to the normative activity of Parliament. 21 G. Ambrosini 1953, p. 257. 22 Today Article 11 Cost. seems sometimes an “old umbrella” or a “chewing-gum provision” (Condorelli 1978, p. 671), which can no longer cover the constitutional transformations which have occurred. See M. Luciani 1992; G.U. Rescigno 1994. 23 Critical remarks, among others, by two former ECJ judges, Monaco 1964 and Catalano 1964, and by the constitutionalists Mazziotti 1964 and P. Barile 1966. 24 Conforti 1966, p. 5.

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But the Costa decision, and what followed, appears as an important manifestation of juridical Europhilia. At that time, except for within some small professional circles, the prevalence of subsequent ordinary statutes on international and EC law was commonly taken for granted. In case of conflict between domestic norms and international norms, Italian courts generally used to bypass the lex posterior principle by applying the lex specialis principle.26 Only after the ruling of the Ccost in the Costa case did the ECJ develop the doctrine of supremacy, and only after the decision of the ECJ on supremacy did the overflowing legal literature mentioned by Condorelli start. 3. Acciaierie S. Michele Just one year later, in 1965, the Ccost again dealt with EC law in an equally remarkable although much less well-known decision – the n. 98/1965 Acciaierie S. Michele.27 According to Ingo Feustel, the decision “was welcomed, especially abroad, as a great stride forward”,28 but in Italy the judgement seems to have passed almost unnoticed. It should now be regarded as one of the leading cases in Ccost case law on the EC. The Court created the dogmatic framework of its future decisions: it developed the “pluralist” doctrine (as I call it) of the relationships between EC and domestic legal order, and it laid the foundation for the counter-limits doctrine. 3.1. Pluralism as Distinguished from Dualism In Acciaierie S. Michele, some firms were claiming that the institution of the ECJ was incompatible with the ban on the institution of Special Courts (Article 102) and violated the constitutional principle of the “judicial protection of rights . . . by means of ordinary or administrative courts” (Article 113). The Ccost rejected the issue on the constitutionality of the execution within Italian legal order of the ECSC Treaty, ruling that Articles 102 and 113 Cost. refer only to the protection of rights ascribed to a subject because of his position in the national legal order. Articles 102 and 113 Cost. do not concern the protection of rights deriving from an “external” system such as the ECSC. The statements made by the Ccost are of two different kinds. The first are interpretations of constitutional provisions. The Court decides the scope of ap25 On the EC’s reactions, see also Stein 1965, p. 2 – a report in English on the discussion of the Italian legal doctrine of the time. 26 See Condorelli 1978 and Conforti 1966. A norm is special when it has a narrower scope. 27 In Giur cost., 1965, p. 1322. 28 Feustel 1976, p. 193.

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plication of Articles 102 and 113 and the meaning of the “limitations of sovereignty” clause of Article 11. This is exegesis – a common way of legal argumentation. The Costa case provided a much more interesting interpretation of Article 11 as a norm on the proceeding of execution of EC treaties. The second kind of statement is dogmatic in nature and concerns “relationships between legal orders”. The Court acknowledges the autonomy of EC legal order in the broadest sense, stating that it has to be conceived as “altogether distinct” from the domestic legal system. National courts and European courts gravitate in “separate legal orbits”. Since EC law does not belong to the system of national legal sources, it is not subordinate to the constitution. National courts “do not have competence in controlling the acts of ECSC agencies, because these agencies are not subject to the sovereign power of the Member States, and their norms are not part of national legal systems”. At first sight, these statements do not seem particularly original.29 Legal positivism had been using argumentation of this kind since the beginning of the century. Assertions in terms of relationships between legal orders made up the basis of the long-lasting controversy between dualism and monism (1914– 1964).30 However, despite the terminological continuity with dualism, in the Acciaierie S. Michele case a pronounced breaking off from the traditional approach of Italian doctrine was occurring. A creeping, albeit radical, transformation of the legal doctrine of sovereignty was taking place. I call “pluralism” the new doctrine gradually emerging from the Ccost jurisprudence since the Acciaierie S. Michele decision.31 As from Kelsen, dualism and pluralism are meant as being synonymous; and, dualism seems to imply a sort of pluralism: if international law and domestic law are distinct – one says – there will be as many legal systems as sovereign states.32 However, the distinction between dualism and pluralism is important, at least from the viewpoint of a legal history of European integration.33 Legal pluralism can be precisely de29 These statements met only the reaction of one constitutionalist, Mazziotti 1965. They were appreciated and developed by Durante 1965 and 1968 and by G. Barile 1966, and deeply impressed the further case law of the Ccost on the EC. 30 The starting point is in Triepel 1899, Anzilotti 1902 and 1905 (classical dualism), Verdross 1914 and Kelsen 1920 (monism). We can establish, conventionally, the conclusion of the controversy in Kelsen 1945 and 1960 (monism is a theory, not a doctrine), Verdross 1959 (“moderate monism”), Mosler 1957, Partsch 1964 (“moderate dualism”), Ross 1947, Fitzmaurice 1957, Sørensen 1960, Quadri 1960, Wagner 1964 (purely speculative or linguistic controversy). The controversy proclaimed the scientific character of internationalist doctrine and it provided a useful (flexible and opaque) way of systematic argumentation. 31 Donati 1995 uses the expression “structural separation” referring to the same doctrine. The expression can be misleading – the separation was “structural” also according to the old dualist school; the new doctrine made the “structural separated” legal system somehow “more open.” 32 Kelsen 1960, p. 360.

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fined and distinguished from dualism (as well as from political or social pluralism) by applying the conceptual schemes developed by the old school. The distinctive feature between dualism and pluralism lies in the acceptance (by dualism and obviously by monism) or in the rejection (by pluralism) of a concept of “sovereign legal order” based on its “unique” and “exclusive” nature.34 Uniqueness and exclusivity of the legal order seemed at the core of the concepts of sovereignty, system of legal sources, hierarchy, and legitimacy. Within a sovereign legal order there is only one supreme source of authority; within a legal system there is only one source of validity. Directly or indirectly, the same authority states all the legally binding decisions, and all the norms of a sovereign legal order can be related to the same fundamental norm. The sovereign authority or fundamental norm is “unique” (einheitlich), because it expresses an exclusive criterion for the legal qualification of the behaviors of the subjects of the normative system. According to Kelsen, the legal concept of sovereignty expresses that there is no external limit to the sovereign order and that limits to the claim of validity of its norms can just be internal. “The uniqueness of the sovereign legal order is the true logical and juridical meaning of the State’s sovereignty – this concept that is often misunderstood, both politically and psychologically”.35 The sovereign legal system exhausts the legal universe for every subject placed under its authority – judge, official, or citizen. Within that legal order no other authority is requested and no other authority can be juridically conceived. Norms originating from other normative systems (natural law, morals, politics, international law, foreign law, etc.) cannot be binding by their own force within a different sovereign legal order. At the most, they are “mere facts” for that legal system. They have to be included within the sovereign legal system by means of its own valid norms in order to be binding for its subjects and in order to be enforced by its courts and officials. At the time of the Acciaierie 33 In Italy, legal pluralism was directly related to the so-called “institutional pluralism” of one of the most important jurists in the Fascist period, Santi Romano (the relationships between legal pluralism and political and social pluralism are complex; in any case out of the range of this work). Ziccardi 1964, pp. 1003 s. ascribes the confusion between pluralism and dualism to the influence of Santi Romano’s institutionalism. 34 Some formulations of the principle are Jellinek 1900, pp. 375 ff. (sovereignty as exclusive power of the State to limit itself), Laband 1991, Kelsen 1920 and 1960, pp. 231 ff., Bobbio 1960, pp. 232 ff. In the Italian internationalist doctrine, see Ago 1934, p. 106, Balladore Pallieri 1935, Morelli 1943, p. 74 at note 56, Ziccardi 1943, pp. 110 ff. In the constitutional doctrine, see La Pergola 1961, pp. 378 ff., Crisafulli 1984, II, p. 175, Modugno 1980, pp. 725 ff. Romano 1946, p. 119 at note 95 bis, already rejects the principle of the exclusivity of the sovereign legal order. 35 Kelsen 1920, p. 276. I translate Einheitlichkeit and unicità as “uniqueness”. Raz 1970, p. 8, seems to use a similar terminology regarding Austin’s theory of sovereignty.

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S. Michele decision, at the very core of the legal doctrine of sovereignty there was this sort of “effective claim on the monopoly of the judicial assessments” (as we can call it, paraphrasing Weber) made by the legal order that does not derive its validity from the others. The principle of the unique and exclusive nature of the sovereign legal order was shared by monism as well by dualism. Of course, according to dualism, international law and domestic law have a distinct source of validity (will of the international community and will of the State) as well as different subjects (states and individuals).36 But the dualist assumption of the coexistence of distinct sovereign legal orders was a proposition made from a point of view that is logically “external” to both legal systems. From the viewpoint of one sovereign legal order (whether national or international), dualism openly acknowledged that only its own norms are juridical.37 Dualism and monism agreed on the point that “there cannot be two masters” for the subjects of a legal order; there cannot be two masters for its courts, officials, and jurists.38 The dogma of the unique and exclusive character of the sovereign legal order required external norms (of the international community, of the Church, of a foreign State) to be somehow included within the normative hierarchy of the receiving legal system. In the case of international treaties, the execution was said to be the act that “transforms” international law into domestic law (or the act that originates the internal norms necessary to the “adaptation” of the domestic system to international law).39 Through transformation (or adaptation), former external norms were ranked in the system of normative sources of the receiving legal order. Being included, they were “under the law” or “under the constitution” – under the rule of law. At the time, the positivist dogma of a unique and exclusive juridical viewpoint within a sovereign legal order expressed the necessity of a purely juridical (non-political) method. However, it also seemed implied by the very concept of Rechtsstaat: it was deeply related to the concepts of normative hierarchy and to the issue of limiting the public powers through the law (the powers of the sovereign State vis-à-vis the international community, the powers of the king or the government vis-à-vis the parliament, etc.).40

36 This is the classical formulation of Triepel 1899, Anzilotti 1902, and Anzilotti 1905. 37 Ago 1934, p. 106, Balladore Pallieri 1935, pp. 30 ff., Morelli 1943, p. 74 at note 56, Ziccardi 1943, pp. 110 ff. 38 Indeed, what Kelsen reproached dualism for was just the first kind of “external” and therefore non-juridical statement. According to Kelsen (and to the exclusivity principle), it was impossible to conceive “a validity of both legal orders from the same point of view (von dem selben einheitlichen Standpunkt)” (Kelsen 1920, p. 178). 39 Transformation is the classical concept of the Transformationslehre of Triepel. Adeguamento is the concept used by the Italian doctrine.

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Rejecting this dogma, after Santi Romano, Italian pluralism conceives norms that are binding within a sovereign legal order (i. e. applied by its courts and officials) without being part of it and without being ranked in its normative hierarchy.41 Pluralist scholars wrote that EC law is binding “as such”, as the domestic system simply “opens itself” to EC law, creating a “legal vacuum”, a void space, that can be filled by norms of other legal orders.42 The statutes giving execution to EC treaties have just an historical value. In any case, they do not transform EC norms into domestic law. The point is that EC law is external even when national courts and public officials apply it. Being external, it cannot give rise to conflicts with domestic law. External law cannot be evaluated on the scale of domestic norms, just as domestic norms cannot be evaluated on the scale of external law. This kind of mutual incommensurability, formerly related to the exclusivity principle, is persistent because it lasts after the execution of EC treaties. Since the incommensurability is persistent, no conflict between the norms of the two legal systems (EC law and national constitution or statutes) can be juridically conceived. Therefore, there no longer is one exclusive criterion for the legal qualification of the behaviors of subjects of the normative system; there is not “a way, conclusive within the system, for determining what counts as an authoritative norm of the system”.43 The Sovereign State renounces the claim on the monopoly of judicial assessments. More than divided or shared, sovereignty is refused. The Ccost in the Acciaierie S. Michele case clearly began to move away from the dogma of the unity of the sovereign legal system toward a pluralist approach to the topic of the relationships between EC legal order and domestic 40 Indeed, the dualist assumption is not “external” to both legal systems because of its supposed purely theoretical and descriptive nature. Dualism had been highly operative. It limited the treaty-making powers of the government in favor of national parliamentary sovereignty (Anzilotti 1905), and it allowed to conceive as juridical the action of international courts and agencies – institutions which have to be bound only by international law and to apply only international law (see Advisory Opinion on Treatment of Polish Nationals in Danzig, 1932 P.C.I.J., Ser. A/B, No. 44, at 22, and Article 27 UN Convention on the Law of Treaties, Vienna, 1969: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”). 41 Romano 1946, p. 119, at note 95 bis, Capotorti 1953. 42 Capotorti 1960, p. 15 at note 29, G. Barile 1965, Durante 1965 and Durante 1968. 43 MacCormick 1999, p. 8: “The characteristic of an institutional normative order is that competent judgement in it is conclusive within its own order”. This characteristic expresses the principle of the unique and exclusive nature of the sovereign normative system. MacCormick adds an exception, “coordinated cross-recognition of different orders”. This exception is pluralism. Coordination implies a coordinating normative system whose judgements are conclusive within the coordinated systems (Kelsen 1920, pp. 164 ff.).

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legal order. EC law did not belong to the system of national legal sources and it could not be ranked within the national hierarchy of law sources. Since Acciaierie S. Michele, the pluralist doctrine has been the main instrument of Ccost case law on the EC. It allowed the Court to reject the issues on constitutionality concerning EC law by simply denying the possibility of the existence of a conflict between norms standing in different legal orders (Acciaierie S. Michele n. 98/1965, Frontini n. 183/1973). The pluralist doctrine even allowed the Court to recognize the immediacy of supremacy in the decision Granital n. 170/1984.44 The expression “autonomous and distinct legal orders, although coordinated” has been the banner of Ccost case law on the EC, a formula repeated in every decision with a ritual constancy, overlapping the claims for the “autonomy”, “sovereignty”, or “peculiarity” (originarietà, Eigenständigkeit, natura giuridica sui generis) of EC legal order. Although the genealogy of the hendiadys “coordination and autonomy” can be traced back to Anzilotti,45 we shall mark the difference between dualism and the Ccost doctrine of the persistent incommensurability. In Germany, as well, similar doctrinal changes were taking place as a direct consequence of EC legal integration.46 From the beginning, European legal integration meant a collapse of the concept of sovereignty, but the first reaction to such a collapse was totally inside the systematic legal culture of the time. As Tarello pointed out, speaking of legal orders has always been the way “to technicize a synonym of ‘law’, in order to mask breaking-off and individuate coherence in the system (uniqueness of the legal order), where the first view reveals conflicts”.47 The move toward a pluralist doctrine was not an exception. 3.2. Counter-limits However, despite the incommensurability dogma, national courts and officials still needed some criterion of comparison in case of conflict between EC norms and domestic norms. Through legal pluralism, the Italian doctrine and 44 The Court ruled that, because of the separation between the two legal orders, conflicts between EC norms and domestic norms are merely apparent and EC law has to be applied by national courts and officials without being ranked within the domestic normative hierarchy. Therefore, the question of a conflict between EC regulations and subsequent domestic statutes cannot be referred to the Ccost, the national judge has simply to apply EC law granting its supremacy. 45 Anzilotti 1905, p. 319. 46 More than the move from Transformationslehre to Vollzugslehre (Mosler 1957, pp. 13 ff. and Partsch 1964, pp. 19 f., 86 ff., 142 ff.), we have to emphasize here the legal literature concerning the Eigenständigkeit of EC legal order. See Wagner 1965 and Wagner 1967. 47 And this way of arguing always supports the result of the conflict, adds Tarello, 1988, p. 194.

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jurisprudence had waived the constitutional system of legal sources: the criterion was found in the counter-limits doctrine. Indeed, the Acciaierie S. Michele decision ruled on the radical distinction and autonomy of the EC legal system, but it also began to build the standard for balancing between the principle expressed by Article 11 Cost. and other constitutional values. The Ccost recalled the necessity of a full defence of rights and stated that the legislator (even by means of EC treaties) should not infringe the fundamental right to due process. The Court then outlined a description of the jurisdiction of the ECJ and concluded that it was fashioned in a way essentially “corresponding to the basic guidelines of our jurisdictional system”. Developing the first rudimental doctrine of the counter-limits, the Ccost anticipated the famous Solange decisions of the German Bundesverfassungsgericht (Solange I [1974] and Solange II [1986]). The German doctrine, however, had been discussing the topic of the strukturelle Kongruenz or Homogenität between domestic constitution and the EC legal system since the beginning of the Sixties.48 We have to look back at that discussion in order to understand the change that was taking place in public law and in the legal culture of the time. Those jurists were searching for new conceptual instruments in order to avoid the rigid “aut-aut” implied by an approach to EC law in terms of hierarchy of norms. Writing in 1964 about the relationship between EC law and domestic constitution, Karl Heinrich Friauf held that “there cannot be an either-or. Considered that in an individual case the EC can be entrusted with sovereign powers of different kind, different scope and different degree, we can find no criterion valid in every case for determining how and how much the fundamental principles of public law shall be transformed”.49 Such criterion could not be found in the conceptual schemes of the old dogmatic tradition. The measure could be found neither in the normativist concept of hierarchy nor in the more flexible approach in terms of relationships between legal orders. These instruments seemed too narrow and too rigid, above all too opaque: for granting the the relationship between the EC legal system and domestic constitution should be conceived in terms of a relationship between values, as a Wertrelation.50 When the influence of politics is too obvious or when the legal outcome is too far from the letter of the constitution or from the dominant doctrine and legal tradition, appealing to norms or to dogmatic constructions can be insufficient – a way of legal argumentation too poor for the task.

48

See Thieme 1960, Friauf 1964, Badura 1966 and Wengler 1968. Friauf 1964, p. 787. 50 Friauf 1964, p. 786. On values and German jurisprudence, see Schmitt 1967, Böckenförde 1974, Alexy 1986. 49

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4. Frontini – The Difficulties of the Dogmatic Approach The limits of the traditional way of legal arguing emerge in the Ccost decision n. 183/1973, the Frontini case.51 At the time of the Frontini judgement, the Socialist Party and the Communist Party were moving away from their initial rejection of the EC. With the exception of France, the courts of the other Member States of the Community had already recognized the supremacy of EC law.52 In Italy, some “ordinary” (as opposed to administrative and constitutional) courts were openly challenging the Costa ruling of the Ccost.53 “The several years’ siege by the prevailing doctrine”54 of the Ccost was reaching heights of impressive acrimony. This conflict was not principally due to the attitude of the Italian courts toward European integration but to persistent noncompliance with EC law on the part of the national legislator and administrator. Nearly two-thirds of the infringement proceedings discussed before the ECJ concerned Italy.55 Italy was the black sheep of the Community. This context originated the “first watershed” in the Ccost case law on the EC. The judgement was generally welcomed as the final acceptance of the doctrine of supremacy56 as the “tardy but firm pro-European turn” of the Ccost.57 It was, however, a matter of interpretation, as supremacy was not at issue and the Court did not rule clearly on the point. But the Court rejected the issue on the constitutionality of the EEC Treaty with such enthusiasm, with such a triumphant oratory, that almost nobody doubted the real meaning of its decision. 51

Giur. cost., 1973, p. 2401. For an English translation, CMLR, 1974, p. 372. The Conseil constitutionnel and the Cour de Cassation accepted supremacy in 1975 (Rec. Dec. Cons. Const., 1975, 19 and Dalloz, 1975, 497), the Conseil d’État in 1989 (Rec. Leb., 1989, 190). 53 Broad reports of decisions by national courts can be found in Tamburini 1976, Astolfi 1973, Mosconi 1965. The greatest impulse surely came from the lower judges, especially from Brescia, Milan, Turin, Genoa, and Bologna, but also the Corte di Cassazione pressed for supremacy (in Foro it., 1972, I, 1963 and 1972, I, 2769; see the proud claim of Justice Stella Richter 1975, p. 323). 54 Condorelli 1978. 55 P. Barile 1978, p. 643. Report by Ribolzi 1975. See the notes by Tizzano 1973, Capelli 1973 and Catalano 1973, significantly entitled “Persistent violations of EEC Treaty and bizarre claims of Italy”, “An Italian-style European vocation”, and “Formal supranationalism and substantial supranationalism” (Nicola Catalano stigmatizes the “fatalistic cupio dissolvi” of the Italian government, always sitting “in the accused’s bench” before the ECJ, as an “implacable rebel” in the Community. He hurls himself against the “impressive superficiality” of the Ccost decision in the Costa case, even against its “poor knowledge of the texts and lack of interest”. Nicola Catalano, former judge at the ECJ and European activist, was also the lawyer of the private party in the Frontini case). 56 Among others, P. Barile 1973, Monaco 1974, Maltese 1974, Cappelli 1974. 57 Tizzano 1978, p. 213. 52

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The courts of Turin and Genoa had challenged the validity of the EEC Treaty by asserting that it violated several constitutional provisions, first of all the democratic principle linked to parliamentary sovereignty.58 The courts had also challenged that the creation of the EC could be traced back to the purposes of “peace and justice between nations” mentioned by Article 11. In the Frontini case, the Court awkwardly related European integration to Article 11 Cost. and stated that there was “no possible doubt” that Article 11 was the “certain basis of legitimacy” of the EEC Treaty’s execution. The emphasis betrayed the embarrassment of the Court. Some scholars had argued that such a political question was not a matter for judicial review,59 others that Article 11 is related just to universalistic organizations such as the United Nations.60 The Italian Court then almost copied the solemn description of EC legal order formulated by the ECJ in the Costa case, but also made some bizarre assertions about the “strict distribution of competencies” granted by the “rigorous and accurate provisions of the Treaty”: the ECJ was already largely showing what could be done with the EC treaties’ provisions on competencies, as their drafting was “teleological” or functional rather than “definitional”. The Ccost recalled the new political powers Italy was gaining through European integration, and it even hinted at the “indirect but not, for this reason, any less alert and watchful control of Italian Parliament” on EC activity – a mystifying or perhaps sarcastic statement.61 Altogether, the grounds of the judgement appeared to be that of a decision “of the Fifties”, unrealistic and apologetic.62 The Court rejected the issues on constitutionality appealing to the pluralist conception of the separation dogma, but it also contradicted the assumption of a radical separation between the two systems, asserting that EC regulations “have the binding force of the statute” and are able to fulfil the constitutional provisions providing a riserva di legge, i. e. the provisions requiring that only statutes can regulate certain areas. The Court was still trying to reason in terms of normative hierarchy: sometimes EC regulations were said to be included 58 The ordinance of the Court of Genoa was written by Giuseppe Borrè – a wellknown Italian judge, one of the founders of Magistratura democratica. For a collection of his writings see Pepino (ed.) 2001. 59 P. Barile, 1966, p. 21, Mazziotti, 1964, pp. 448 f. 60 Colonna 1964, pp. 295 f.; Crisafulli 1984, II, p. 147; Bernardini 1965. 61 Condorelli 1978, p. 673: “nobody has got wind of that”; Gemma 1977, p. 1179, at note 5: “the defensive bombast spun the Court out of control and misrepresented and distorted quite a different reality”, Gaja 1979, p. 623: “an imaginary reality”. About the attitude of the Italian political class toward European integration, two events can here be recalled: the unfulfilled replacement (1959–1969) of the Italian delegation at the Parliamentary Assembly – the number of Italian MPs dropped from 39 to 13; the repeated refusals of the Presidency of the Commission – a sort of Italian “empty chairs crises” overlapping the more famous French one. 62 Tizzano 1976, p. 2301 at note 5; Tizzano 1978, p. 213.

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within the domestic system of sources, sometimes they were said to be excluded and external. The argumentation was not consistent. Even more important, the legal outcome was not flexible enough: All the riserve di legge were fulfilled by EC regulations? As Sorrentino noticed, the Court should have distinguished.63 What seemed particularly weak was the reconstruction of the counter-limits doctrine fashioned by the Court. The Court ruled that “such limitations of sovereignty . . . cannot imply the unacceptable power to violate the fundamental principles of our constitutional order or the inviolable rights of the human being. It is clear that, in case of such aberrant interpretation of Article 189 EEC Treaty, the jurisdiction of this Court on the persisting compatibility between the Treaty and the above-mentioned fundamental principles will be granted. But it has to be excluded that this Court can control the single regulations”. Stating that its jurisdiction is limited to the issue on the “persisting compatibility” of the treaties with the Constitution, the Court was not just making reference to the purely speculative case of the “Community dictatorship”.64 It was also asserting that an eventual acceptance of the issue will compel Italy to denounce the treaty, because the judgement of the Court will determine the total abrogation of the execution statute – something clearly beyond the powers of the Court. The counter-limits doctrine of the Frontini case was merely rhetorical and persuasive. It rejected the main feature of the counter-limits: their power to implement an inter-institutional dialogue asserting the necessity of a balance between values underlying European integration and principles of domestic constitutional law. The ruling of the Court, wrote Zagrebelsky, was “an alternative between all or nothing: all, because the violation of fundamental principles of the Constitution opens the door – but only in this extreme case – to the (improbable) denunciation of the treaties; nothing, because in the meantime it is not possible to avoid the application of single regulations – even if they are unconstitutional”.65 5. Conclusions – Toward a Counter-limits Doctrine One of the most impressive images of recent constitutional trends is MacCormick’s manifesto on the “European Commonwealth”.66 Europe has now to be conceived as a post-sovereign commonwealth, whose legitimacy lies in the possibility of building the “common perception of a common good” and in the 63 64 65 66

Sorrentino 1974. Condorelli 1978, p. 675. Zagrebelsky 1988, p. 118. MacCormick 1999, pp. 137 ff., spec. p. 153.

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creation of the necessary institutional arrangements to pursue that “common good” imagined. The European constitution has to be an open and flexible institutional frame for an ongoing dialogue between all the relevant actors of a multilevel governance. It has to be flexible, because it is a post-sovereign constitution, a constitution with no clear hierarchy of norms and one that can always be modified as soon as new inputs come from its actors. As Jo Shaw says, a “post-national constitutionalism”, based on dialogue and negotiation more than on discipline and belief, a non-teleological constitutionalism, whose aims are not transcendent to its practices.67 This constitution needs to create the perception of common goods in order to manage the contingency of its structure. Legal dogmas could not create, and were not supposed to create, this kind of “common perception of a common good” that seems to be crucial in the contemporary post-representative public sphere. Indeed, legal dogmas (integration or separation of legal orders, monism, dualism, and pluralism) were conceptual structures and patterns of legal reasoning and legal arguing, which were, in themselves, completely destitute of normative content. Every legal outcome could easily be deduced from any theoretical premise about the relationships between legal orders. Separation, as well as integration, could mean supremacy of EC law, but also supremacy of the national constitution. As the Frontini case showed, the old method did not fulfil its purposes any longer. The Court could just say: because of the principle of separation (or integration), EC law (or constitutional law) has to prevail; because of a certain interpretation of Article 11 Cost., the treaties do not violate the national constitution (or the treaties prevail over subsequent national statutes, or prevail over constitutional provisions). Interpreting the constitution in this way, the Court could simply accept from the ECJ a normative hierarchy or, on the contrary, it could simply reject such a hierarchy, building a different normative hierarchy. It could not create the framework of a “constitutional dialogue” (argumentation and bargaining) with the other institutions of the European governance. The “legalist” or “systematic” method provided a way of legal arguing that was flexible, but opaque. In the longer term, the approach failed to justify and control the constitutional transformations occurring. One could say, as Alexy would suggest, that it was not convincing because it lacked consistency, transparency, and sincerity68: the old school spoke about integration and separation of legal orders, but the legal outcome was completely independent from the conceptual scheme adopted. The systematic approach, as a way of legal ar-

67

Shaw 2000. Alexy 1983, p. 334 on dogmatic argumentation and pp. 233 ff. on the rules of the general practical argumentation. 68

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guing, was too “purely juridical” in matters where it was clear that the decision was political. The argumentation lacked accountability and transparency. Only through the counter-limits doctrine was the experience of European integration forcing Italian legal culture to give up that method. We can call “neoconstitutionalism” the new approaches which then emerged as an answer to such demands for “coherent” flexibility of legal arguing and “reasonableness” of legal argumentation.69 Through counter-limits doctrine, Italian legal culture was entering the “age of balancing”, as Aleinikoff calls it.70 Legal dogmas could not be “balanced”. They failed to provide something like a “candid and informed weighing of the competing interests, within the confines of the judicial process” for the “nonEuclidean problems”71 of European integration. In the long run, the legitimacy given by the Court to the process of European integration was relatively weak, because it was clear that its decisions were politically oriented. Therefore, also the political role of the Court was relatively weak. That way of legal thinking provided a technique of legal argumentation, but did not open any “constitutional dialogue” or constitutional negotiation. The Court had no instrument to affect the process of integration; it could not impose topics for public discussion or aims to be institutionalized; and it could not control the European activity in a really flexible way – that is, by monitoring, recommending, and threatening. Such requirements would be met only by developing the language of rights, principles, and their balancing. For European integration, such requirements led the development of the counter-limits doctrine. Through the appeal to fundamental principles and inviolable rights, the courts most cogently justify their jurisdiction. They have no need to actually exercise their power of veto; it is often sufficient that they claim or threaten to do so in order to implement a dialogue between the other actors of the European constitution (ECJ, domestic courts, national governments and political parties, eventually media and public opinion, etc.). The European constitution needs to be open to renegotiations of its norms and decisions in case of reaction from some strong, well-organized, transnational or local interest. But at least before the Court, those interests have to speak the language of supreme values: fundamental rights and principles, the lexicon of the neo-constitutionalist approaches to public law, are the tools of a 69 The word “neo-constitutionalism” is used to describe a broad group of approaches in legal theory and theory of legal argumentation and interpretation. P. Comanducci 2002 distinguishes neo-constitutionalism as a theory, a method and an ideology. On neo-constitutionalism see Pozzolo 2001. 70 Aleinikoff 1987. 71 Justice Frankfurter, in Dennis v. USA, 341 U.S. 494, 524–25 (1951).

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Verdross, Alfred (1914), Zur Konstruktion des Völkerrechts, in Kelsen, Hans, Merkel, Adolf, and Verdross, Alfred, Die Wiener rechtstheoretische Schule, II, Wien, Europa Verlag, 1968, pp. 1995–2022. – (1959), Völkerrecht, IV ed., Wien, Springer. Wagner, Heinz (1964), Monismus und Dualismus: eine methodenkritische Betrachtung zum Theorienstreit, “Archiv des öffentlichen Rechts”, 89, pp. 212–241. – (1965), Grundbegriffe des Beschlussrechts der Europäischen Gemeinschaften, Köln/Berlin/Bonn/München, Heymann. – (1967), Die Vorstellung der Eigenständigkeit in der Rechtswissenschaft. Ein Beitrag zur juristischen Systematik und Terminologie, Berlin, Duncker & Humblot. Weiler, Joseph H. H. (1981), The Community System: the Dual Character of Supranationalism, “Yearbook of European Law”, I, pp. 267–306. – (1994), A Quiet Revolution. The European Court of Justice and its Interlocutors, “Comparative Political Studies”, 26, pp. 513–534. – (1999), The Constitution of Europe: ‘Do the New Clothes Have en Emperor?’ and Other Essays on European Integration, Cambridge, Cambridge University Press. Weiler, Joseph H. H./Lockhart, Nicolas J. S. (1995), “Taking Rights Seriously” Seriously: The European Court and its Fundamental Rights Jurisprudence, “Common Market Law Review”, 32, pp. 51–94, pp. 529–627. Wengler, Wilhelm (1968), Grundrechtsminimum und Äquivalenz der Grundrechtsschutzsysteme, “Juristen Zeitung”, pp. 327–329. Zagrebelsky, Gustavo (1988), La giustizia costituzionale, Bologna, Il Mulino. Ziccardi, Piero (1943), La costituzione dell’ordinamento internazionale, Milano, Giuffrè. – (1964), Diritto internazionale in generale, in Enciclopedia del diritto, XII, Milano, Giuffrè, p. 988.

Human Rights Protection in European Community Law: The Problem of Standards Josh Holmes It is now over thirty years since the European Court of Justice first proclaimed itself the protector of fundamental rights enshrined among the general principles of Community law.1 The ensuing decades have provided guidance as to the types of individual interest which are thereby accorded special status. The list is a familiar one, replicating the main categories of liberal constitutional discourse: freedom of expression,2 the right to private and family life,3 the right to a fair hearing,4 and so on. However, and despite the reassuring appearance of clarity conferred by this canon, doubts remain as to how Community law is to go about fixing the precise level or standard of protection which it offers. The present contribution is an attempt to examine this ‘problem of standards’, in order to assess its character and seriousness, and to identify some theoretical and practical tools with which it might be met. Discussion is divided into four sections. In the first section, I set out the problem in its most practical form. In the second, I consider a theoretically richer formulation of the problem, which appears to confer upon it the weight and seriousness of a significant constitutional dilemma. In this respect, I draw on a forceful and persuasive contribution to the debate by Professor Joseph Weiler.5 In the third section of the chapter, I subject this formulation to critical scrutiny, in order to show that it presents the problem of standards as more deep-seated and intractable than may in fact be the case. I accept, however, that the problem remains a real one, albeit one which arises in many of the contexts in which Community law must operate. In conclusion, I therefore seek to identify how the problem might be overcome without causing any serious or lasting harm to the functionality of the EC legal order.

1 In case 29/69, Stauder v. City of Ulm [1969] ECR 423 at paragraph 7 of the judgment. 2 See e. g. case C-6/98, Pro Sieben [1999] ECR I-7599. 3 See e. g. case 85/87 Dow Benelux [1989] ECR 3137. 4 See e. g. case C-185/95P Baustahlgewebe GmbH [1998] ECR I-8417. 5 Weiler, 1999, pp. 102–129.

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1. A Practical Account of the Problem of Standards 1.1. Community Rights Review and the Systematic Requisites of the Community Legal Order The history of fundamental rights review as a feature of the Community legal order has been often told and requires only cursory treatment here. The initial emergence of such review is most easily explained in the context of the Community’s early constitutional developments. Soon after the Community’s establishment, the European Court of Justice rapidly clarified the full constitutional force of Community law by expositing the doctrines of direct effect and supremacy. Community law was directly applicable within the national legal systems and could be relied upon by individuals before their national courts.6 It prevailed over all inconsistent national law, including national constitutional law.7 The peremptory authority claimed for Community law found its teleological defence in the Community’s ambitious historic mission, which was inconsistent with the weaknesses attaching to traditional legal initiative at the international level.8 The Community was created in order to generate the wealth to rebuild a continent ravaged by war and to provide a basis for peaceful political collaboration. Those goals were to be achieved through the creation of a common market,9 whereby states were required to remove the barriers to cross-border trade posed by certain types of national legal and fiscal intervention. Where divergent 6

Case 26/62 Van Gend en Loos [1963] ECR 13. Case 6/64 Costa v. Enel [1964] ECR 585. 8 See Van Gend en Loos (n. 6 supra) at 12: The objective of the EEC Treaty, which is to establish a Common Market . . . implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states . . . The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields . . . See also Costa v. Enel (n. 7 supra) at 593: By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty became an integral part of the legal systems of the Member States and which their courts are bound to apply . . . The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty. 9 See the original text of Article 2 of the Treaty of Rome 1958, which established the European Economic Community (since amended): The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it. 7

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national regulation impeded the free movement of production factors, Community legislative initiative would introduce a single, harmonised approach. Such an initiative could only succeed if states could trust one another to engage in a mutual opening of markets. The removal of protectionism brought with it inevitable costs: some domestic industries would not be able to withstand the pressures of competition from abroad, and would close. A state would only accept such costs in the expectation of corresponding gains. Some gains would arise independently of other states’ conduct: consumers would benefit from lower prices and higher quality as a consequence of unilateral trade liberalisation. Other gains, however, required reciprocal liberalisation. Provided all states opened their markets simultaneously, each state could expect to see some of its (comparatively more efficient) industries expand even as other (comparatively less efficient) sectors contracted. However, precisely because of the pains of adaptation, it was predictable that significant pressures would be brought to bear upon national governments to delay the removal of barriers or to substitute the old barriers with new and less visible forms of protectionism. The doctrines of direct effect and supremacy were the necessary constitutional bulwarks against such recidivism. They assured the uniform and effective application of Community law upon which its functional mission depended. Necessary though these constitutional pillars appeared to those charged with developing the nascent Community legal order, they also had significant potential to alarm the custodians of national legal systems, and for this reason, they generated a powerful impetus for the development of Community rights review. Community norms, even of the most humble and administrative character, claimed primacy over all national laws, thereby avoiding the various national legal protections against the abuse of public power of which rights guarantees were the most prominent. As a normative matter, the significant constitutional power claimed on behalf of Community law called out for corresponding judicial protections and controls. At a more strategic level, it was especially difficult to justify to national constitutional courts a denial of their power to oversee the Community rules applicable within their national boundaries in the absence of any judicial oversight at the Community level. It is therefore unsurprising that in the case of Stauder, the Court, in an aside, reversed its previous decisional practice10 and acknowledged that it would review Community measures to assure their compatibility with fundamental rights enshrined in the general principles of Community law.11 10 See case 1/58 Stork [1959] ECR 17; cases 26–38 and 40/59 Geitling [1960] ECR 423; and case 40/64 Sgarlata [1965] ECR 215. 11 See n. 1 supra.

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Since this initial emergence of rights review, subsequent case law of the European Court of Justice has suggested that the actions of Member States will also in some circumstances be reviewed to ensure their compatibility with Community rights protections. This is most obviously the case in circumstances where Member States are acting to enforce EC policies or interpret EC rules.12 Some case law also suggests that Member States will be subject to Community rights review insofar as they act in derogation from Community law requirements.13 It is clear however that in the absence of some such Community law context, there is no general rights review of Member State actions at the Community level.14 1.2. The Problem of Standards and the Inadequacy of a Maximalist Solution Whilst the initial emergence of human rights review in Community law may with the benefit of hindsight appear unsurprising, nor is it difficult to understand the Court’s initial reluctance, prior to Stauder, to take such a step. The development of such review posed the potentially thorny problem of how to fix a standard of rights protection for the Community. In order to appreciate the existence of the problem in its most mundane and practical terms, it is sufficient to accept the following two propositions. First, Member States differ as to the rights to which they accord protection and as to the level of protection which they afford to those rights. A superficial inspection of the constitutions and constitutional case law of the Member States is sufficient to confirm that there are many points of difference from state to state. Secondly, if Community law were to adopt a standard different from that offered in a given Member State, this would lead to some predictable tensions between national and Community law. In particular, if Community law gave less protection to a right than a given national system of law, and therefore upheld a Community measure as valid which, under national law, would be declared unconstitutional, it would not necessarily be perceived as a satisfactory substitute for national judicial protection. An obvious solution to the problem of standards would be for Community law to adopt in relation to each right recognised by any of the Member States the highest level of protection prevailing in any of the Member States.15 Under this ‘maximalist solution’, no national constitutional court would need fear that its loss of jurisdiction in consequence of the supremacy of EC law would be 12 13 14 15

See See See See

Craig and de Burca, 2003, pp. 337–349. case C-260/89 ERT [1991] ECR I-2925. case C-299/95 Kremzow [1997] ECR I-2629. Weiler, 1999, p. 109; Craig and de Burca, 2003, p. 328.

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accompanied by any diminution in the level of protection accorded to fundamental rights. However, on closer examination, such a solution proves unsatisfactory for several reasons. First, on the practical level, it would not always be possible to please all constitutional courts, given that several conflicting rights might be implicated in a single set of proceedings. Weiler, drawing on the case of Grogan, offers the example of abortion. In some states, an unborn foetus may be regarded as capable of enjoying a right to life, which prevents abortions from being carried out. In other states, a woman’s right to autonomy over her body may be given a high level of protection, encompassing the right to have an abortion. If a dispute arose which required the Court of Justice to decide how the two rights at stake were to be interpreted as a matter of Community law, the Court could not adopt a solution which conferred maximal protection on both rights. The same point can be made by reference to a single right which is developed in different ways in several Member States. Take for example the right of freedom of expression. In some European legal systems, this right is interpreted in a way which places a great emphasis upon the right of the recipient of expression to have available a range of social and political viewpoints. As a consequence, the state is constitutionally mandated to maintain in place measures, such as public service broadcasting, designed to promote media pluralism. In other European legal systems, more weight may be attached to the freedom of the ‘speaker’, which may entail limitations upon state regulation of the media, even if that regulation aims to ensure variety. If Community law favoured ‘maximal’ protection of freedom of expression based on either interpretative approach it would bring itself into conflict with ‘maximal’ protection based on the other approach.16 Secondly, even in cases involving only one right, where a single and indisputable maximum standard of protection could be identified, conflict between the national and the Community levels would not necessarily be avoided. At most, the national interpretation of a given right upon which the European Court of Justice could draw would supply a calculus for weighing the individual interest protected against the general interest underlying an impugned state measure. It would still be for the European Court to perform the calculus in concreto. In so doing, it might respect to the letter the instructions conferred by the constitutional doctrine from which it borrowed and yet arrive at a different result from the national constitutional court which devised the doctrine. The general interest for the Community, even applying the same criteria of evaluation, would almost 16 For some case-law which raises the possibility of conflict arising out of differing interpretations of the right to freedom of expression, see Craig and de Burca, 2003, p. 367, n. 182.

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invariably fail to coincide with the general interest for any individual Member State. Thirdly, even if a maximalist solution were effective to avoid the practical risk of conflict between the Community court and the national constitutional courts, it would represent an undesirable outcome. It would result in limitations being placed on the Community legislature (and the Member States implementing and enforcing Community law) which aggregated the strictures of each national system of rights. The institutions of Community governance would, as a consequence, be far more constrained than any national public actor as the fortuitous consequence of an effort to avoid inter-judicial conflict.17 For all of these reasons, therefore, the European Court of Justice appears obliged to adopt its own standard of protection, choosing from amongst the national traditions the version of each possible right which appears most appropriate to it for the Community as a whole. 1.3. Is the Problem of Standards Mundane? On the basis of the foregoing discussion, it would be hard to deny that the European Court of Justice faces some potential difficulties in developing its own rights jurisprudence. That said, there is nothing in the way in which the problem of standards has so far been formulated in the present discussion which suggests that it presents a special challenge for the Community legal order of a kind different from that which arises in many other fields. The Community institutions are often confronted with a multiplicity of national traditions and must decide upon an arrangement that is acceptable for the Community as a whole. When fixing a harmonized level of environmental, consumer, or employment protection, for instance, the Community legislature must balance the interests of wealthy states who favour a high level of protection, and poorer states who cannot afford to burden their industries.18 It is true that Community judges may not have the same legitimacy as Community legislators to impose a Community-wide approach. That said, it is well recognised that the Court of Justice, in applying the derogations to the free movement or competition provisions, has long engaged in a kind of judicial harmonisation. It sets the outer limits of permissible regulatory activity by de17 Weiler speculates (1999, p. 112) that such an outcome might be thought desirable from certain (presumably liberal or libertarian) perspectives. Given that national rights protections in Europe typically combine negative civil and political rights with positive socio-economic entitlements, it seems to me unlikely that anyone would welcome the indiscriminate judicialisation of politics and mishmash of mutually inconsistent protections that would result from a maximalist solution. 18 For a discussion of the challenges and potential pitfalls of legislative harmonisation, see, for example, McGee and S. Weatherill, 1990, p. 578.

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ciding which types of national regulation are necessary and proportionate and which are not.19 Nor has judicial harmonisation been confined to ‘regulatory’ issues which require a challenge to political actors. The European Court of Justice has also (albeit with some precaution) required a certain amount of harmonisation of norms classically within the keeping of the judicial branch, such as national rules governing legal procedure and remedies.20 In order to differentiate the problem of standards in relation to rights from all of the many contexts in which harmonisation requires compromise amongst the Member States, it is necessary to add a further layer of analysis, comprising a theoretically richer conception of judicial rights protections. In the next section, I consider two ways in which theory might be used to add gravitas to the problem of standards. 2. From Practical Challenge to Constitutional Dilemma: Reformulating the Problem of Standards 2.1. The Place of Rights in the National Constitutional Hierarchy of Norms A simple but ultimately unsatisfying method in which the practical problem of standards might be given a more imposing stature is by reference to the status of rights protections within the hierarchy of norms comprising national constitutional orders. The judicial protection of rights in European states stems in many states from a constitutional text which enjoys special status within the national legal system. Rights may prevail over inconsistent primary legislation. They may be immune from amendment by means of the process laid down for constitutional revision. Although each national legal order has been able to find its own particular ‘gateway’ to allow for the reception and enforcement of Community law at the national level, constitutional courts may feel obliged to straiten that gate in the one field of rights, given the unique status of such norms. This argument therefore provides a basis for distinguishing rights protections from other types of national norms in respect of which the European Court of Justice has played a harmonising role. Harmonisation in the field of rights is 19

See generally Poiares Maduro, 1998. See for example case C-221/89 Factortame III [1996] ECR I-3905, in which the European Court of Justice made clear that, despite the principle of national procedural autonomy, national courts had to make available interim injunctive relief against the state in proceedings involving an alleged breach of Community law. See also, the various cases imposing liability in damages upon Member States for breaches of Community law, commencing with case C-6 and 9/90 Francovich [1991] ECR I-5357. 20

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shown to be especially fraught with the potential for irresolvable conflict. National courts may have a strong reason for refusing to depart from their national practice in the face of a divergent instruction from Community law. However, insofar as the argument for distinguishing rights is framed in terms of the formal conditions of validity of individual national orders, it fails for several reasons to elevate the problem of standards in the context of rights to the status of endemic constitutional crisis. First, as thus framed, the argument depends upon the contingent empirical question of whether the specific legal framework for the reception of EC law and for the protection of fundamental rights in each individual state requires national constitutional courts to promote domestically defined rights over Community norms. The force of the argument then depends upon a doctrinal survey of the Member States. Without undertaking any such survey here, several decades of well-documented internal constitutional wrangling within the Member States has not resulted in national legal frameworks unambiguously asserting the priority of domestic rights protections over EC law in each individual set of proceedings. Secondly, such open systemic conflict is not in fact rife precisely because the national legal frameworks for the reception of Community law and for the protection of fundamental rights are more flexible than is suggested by an account grounded in formal conditions of legal validity. The doctrinal resources are sufficiently open-textured and under-determined to allow a considerable margin to national constitutional courts at the national level to avoid direct conflicts.21 If we are properly to understand the distinctiveness of the problem of standards in relation to rights review, therefore, it will not help us greatly to examine the formal legal status of fundamental rights by comparison with European Community norms under each national constitution. We need instead to consider the normative factors that will inform the interpretation and development of national constitutional law. We must develop a conception of rights which explains their role in the moral psychology of national constitutional courts. 2.2. Rights and the Demarcation of Social and Political Identity Between European States: Weiler’s Formulation of the Problem of Standards Weiler develops his account of the problem of standards along just such lines, sketching out a conception of rights which goes to explain their special potential to ignite constitutional conflict. There are two main features to the conception of rights as it operates in his argument. First, he posits a deep connection between the standard of rights review in a given state and the identity 21 For a discussion of the need for resort to extra-textual normative principles when construing under-determined legal texts, see Sunstein, 1989, p. 415.

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of the people inhabiting it, “rooted in history and social and political culture”.22 Rights protections, then, ‘reflect fundamental societal choices and form an important part in the different identities of polities and societies. They are often that part of social identity about which people care a great deal.’23 Secondly, he identifies two related but distinct ‘basic principles’24 or ‘roots’25 which he understands to underlie the general trend across Western Europe towards constitutional rights review. One principle emphasises the importance of a core of basic interests which should be guaranteed to individuals by virtue of their status as humans. This principle is clearly related to the idea of rights as side constraints, designed to limit the scope for state action which entails harm to individuals in pursuit of consequentialist goals.26 The other principle is one of limited government, in which the protection of rights constitutes one element of a broader constitutional framework enumerating and defining the competences of the state. This latter ‘root’ of rights protection Weiler describes under the rubric of ‘fundamental boundaries’: rights are seen as fixing the relationship between individual and community, not only protecting the former, but also guaranteeing to the latter sufficient room to make social choices in the general interest.27 Next, Weiler claims that, despite the general trend towards the adoption of rights protections in Europe, the definition of rights, beyond a certain core, differs from state to state. He explains such variety, by reference to his conception of judicial rights protections, on the basis that the content of rights is shaped by both of the basic principles which he identifies. The first basic principle, of rights as inviolable side constraints, could conceivably serve as a basis for generating a list of interests in relation to which a broad consensus of opinion favoured protection. The universalistic rhetoric of much rights discourse draws upon such a possibility.28 However, judicial rights 22

Weiler, 1999, p. 105. Id., p. 102. 24 Id., p. 103. 25 Id., p. 104. 26 Compare Nozick, 1974, p. 33: The moral side constraints upon what we may do, I claim, reflect the fact of our separate existences. They reflect the fact that no moral balancing act can take place among us; there is no moral outweighing of one of our lives by others so as to lead to a greater overall social good. Weiler does not himself draw upon modern ethical theory, limiting himself to a passing reference to the sanctity of the individual in the Judaeo-Christian moral tradition. 27 Weiler, 1999, pp. 103–104. 28 For an example of an account of human rights in terms which transcend national boundaries, see Rawls, 1993, pp. 70–71: Human rights . . . are a special class of universal application and hardly controversial in their general intention. They are part of a reasonable law of peoples and 23

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protections prove on examination to have been shaped just as much, if not more, by the principle of fundamental boundaries. The arguments surrounding their content are couched not in terms of the protection of an inviolable core, but rather in terms of striking a balance between fundamental individual interests and fundamental societal interests. Once rights protections are understood to enshrine fundamental boundaries, Weiler argues, it becomes clear why there are such pronounced differences between the judicial interpretations of rights from country to country in Europe. The balance between the needs of society and the entitlements of the individual is a delicate one, which will reflect the defining commitments of a ‘people’. Divergent approaches towards rights are therefore neither shallow nor contingent. As Weiler puts it: This balance . . . is the point where the distinction between rights and boundaries collapses since fundamental rights – beyond the core – become an expression of the kind of particularized societal choice of which fundamental boundaries are an expression. Fundamental boundaries are designed, thus, to allow communities and polities to make and live by those different balances which they deem fundamental.29

It is true that the European Convention on Human Rights and Fundamental Freedoms (ECHR) manages to operate despite the differences in rights protections from state to state in Europe. Weiler explains this institution on the basis that it defines a core of rights and levels of protection ‘which are said to be universal, transcending any legitimate cultural or political difference among societies in, at least, the universe of Europe’.30 Beyond this minimum standard of protection, the Member States of the Council of Europe remain free to exercise their sovereignty, fixing their own fundamental boundaries, subject only to a minimal floor of protections. They may, of course, choose to impose much more extensive rights protections within their own constitutional orders. Because of the modesty of its ambitions, the ECHR rarely becomes entangled with the detailed fixing of fundamental boundaries, and can for the most part avoid tensions between its own standards of protection and those fixed by its signatories.

specify limits on the domestic institutions required of all peoples by that law. In this sense they specify the outer boundary of admissible domestic law of societies in good standing in a just society of peoples. 29 Weiler, 1999, p. 106. 30 Id., p. 105.

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2.3. The Consequential Heightening of Tension Around the Problem of Standards Against the backdrop of the conception of rights which Weiler develops, the problem of standards assumes significantly greater gravity. Rights are potentially hazardous not (only) because of their formal legal status at the national level but because, first, they enshrine profound values attached to social and political identity, and, second, because they demarcate fundamental boundaries which vary significantly from state to state in Europe. Even a national constitutional court which was conscientiously committed to developing national law in ways consistent with the project of European integration may find itself compelled to veto certain developments of Community law. My aim in the next section of this chapter is to assess in greater detail the nature and extent of the problem identified by Weiler. In my view, Weiler is highly convincing in restating the problem in a manner laden with constitutional significance. At the same time, I shall seek to suggest certain factors which may go to lessen the potential for conflict suggested by Weiler, and which may explain why, although there are real tensions, they have not more often led to open judicial confrontation. 3. Reassessing the Problem of Standards My argument is developed in three stages. The first step is to question the extent and character of the link in Europe between national social and political identity and legal rights protections contended for by Weiler. The second is to highlight certain important parallels between the trend towards fundamental rights protections in Europe and the establishment of the Community legal order. These two developments in European legal culture since the Second World War must be understood as related. The third is to show why in consequence the fundamental boundaries represented by national rights review are more fluid than they might at first appear, allowing Community and national constitutional law to avoid much of the tension which one would otherwise expect to attend their overlap. 3.1. Reassessing the Link Between National Socio-political Identity and Legal Rights Protections In Weiler’s analysis, the stakes involved in any conflict between national and Community rights standards are raised by the intimate connection posited between rights and national social and political identity. Such a view of the relationship between a legal order and the specific community to which it applies has deep roots in normative jurisprudence,31 and continues to exercise a consid-

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erable influence.32 Although sometimes presented as an irrefutable truth, it is clearly an empirical claim, the accuracy of which may vary across time and place.33 Even accepting the contingency of the claimed connection between law and national identity, it may still seem a safe supposition that a community, when formulating its highest law, will typically infuse it with its most fundamental moral and political commitments. However, such a claim is problematic in the European context for the following reasons. First, it is necessary to bear in mind the extent to which the modern constitutions of Europe were introduced as a conscious effort to reconstitute the identity of the societies within which they apply. They represented a fresh start, an effort to overcome the moral and political failures of the recent past, and a statement of intention about the future path of development.34 At the time of their introduction, then, rights documents were at least as much about reshaping as they were about reflecting social and political identity. Their broadly phrased guarantees were to be worked out in deliberate rejection of past ethical practice. They also involved a rejection of past constitutional practice which had been set against any judicial review of legislation.35 Secondly, the task of mapping this new start was rendered difficult in all of the Member States not because of disagreements about the path of development which were local and culturally specific but because of ideological cleavages which were shared by all States. Agreement was reached in each state only by finding a formulation satisfactory to both left- and right-wing opinion. More31 Montesquieu’s work contains a seminal attempt to explain legal differentiation in terms of national specificity. See Montesquieu, 1989, book 1, chapters 3, 8, in which he asserts that ‘laws should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another.’ Friedrich Carl von Savigny is also famously associated with an early and extreme identification of the ‘spirit of the people’ (Volksgeist) as the ‘seat of the law’. For discussion, see Cotterrell, 1989, pp. 37–41. Various modern legal theorists also assert some connection between law and community which goes beyond the instrumental requirements of a given group. See, for example, Dworkin, 1991, pp. 195–215. 32 A number of modern comparatists, for example, have argued against instrumental efforts to coordinate legal doctrines across several different national systems, or to transplant doctrines from one system to another on the basis that such efforts are doomed to failure because of the close relationship between law and local culture. See e. g. Watson, 1976, and more recently Legrand, 1996. 33 Weiler appears to acknowledge as much when he states that the connection he posits between ‘social identity’ and rights protections is only ‘often’ the case. See Weiler, 1999, p. 102. 34 There is a clear link between the notion of rights presented here and the normative concept of constitutional patriotism, introduced by Dolf Sternberger and developed in the European Community context by Jurgen Habermas, as a forward-looking alternative to historically and culturally rooted notions of nationalism. See Habermas, 2001. 35 See Stone Sweet, 2000, chapter 1.

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over, national constitutional courts had quickly to develop an interpretative practice which avoided political controversy. Against this backdrop, one can understand why national constitutional courts have in many contexts tended to have regard to, and sometimes to draw upon, one another’s jurisprudence. The existence of a shared interpretative practice, even if it is not explicitly acknowledged in the text of judgments, may serve as a line of defence against any allegation of partisan decision making. Arguably, the ECHR has played a role in doctrinal convergence. To describe it as supplying only a minimal floor of rights protection may be to underestimate its role, at least in some contexts, in contributing to the development and dissemination of a common interpretative approach. There are of course differences in the development of case-law from state to state. It would also be foolish to deny that some differences owe themselves to preoccupations which are particular to a given cultural context. Nonetheless, not all of the business of setting the standard of rights protections at the national level is planted in the bedrock of some existing national identity. Nor have national judiciaries acted in isolation of one another when interpreting rights. In this as in other contexts, legal convergence antedates the involvement of Community law.36 3.2. The Links Between National Rights Review and the Community Legal Order in the European History of Ideas Just as national rights review mechanisms had their origin in the aftermath of the Second World War, so also did the various projects of European integration of which the European Economic Community was the most ambitious. Liberal constitutionalism at the national level attempted to reconstitute the political interactions within European states by ruling out certain types of public action that were deemed to harm protected interests of individuals or groups within the state. The need for such guarantees was justified in terms of recent historical experience. In similar fashion, the Community system attempted to reconstitute the political interactions between European states, partly by ruling out certain types of public action which were deemed to harm the interests of individuals and groups located in other states. Again, recent history was called in aid, and in particular the economic hardship and related political trends attributed to protectionism in the 1930s.37 As with national rights review, so also with the 36 It is interesting to note that one of Weiler’s main examples of a divergence in approach which owes itself to cultural commitments involves contrasting German and U.S. constitutional practice in the field of freedom of expression. See Weiler, 1999, pp. 105–106. It may be harder to find such hard-edged differences involving European comparators.

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Community project, a greater degree of faith than had previously been the case was placed in legal mechanisms to shape the patterns of politics. 3.3. European Legal Pluralism and the Fluidity of Fundamental Boundaries It is therefore suggested that Community law, national rights guarantees, and the ECHR were all three understood by those charged with their development as self-consciously prospective projects, imbued with a sense of moral as well as functional purpose.38 Moreover, the judicial actors responsible for developing the new legal frameworks at national and Community level were aware of the parallel developments and for the most part understood them in broadly sympathetic terms. There was therefore what might be described as a common hermeneutics of reconstruction at work within and across the legal systems of Europe. It would be fanciful to suggest that this common hermeneutic thread served completely to draw the sting out of the problem of standards. Such kindred spirit as has existed among the highest judicial actors of post-war Europe can be presumed to have fluctuated significantly across time and place. Also, in many situations, even a national court predisposed to avoid conflict with Community law would in some circumstances find itself compelled to prioritise certain national rights guarantees. The task of the European Court of Justice in developing its rights jurisprudence is therefore not without its hazards. Nonetheless, the socially and historically grounded analysis of European rights review which has been developed here may shed some light upon why inter-judicial conflict has not arisen on any profound scale. National constitutional courts have interpreted their foundational texts in a sensitive manner, showing full awareness of the requirements of the European integration project to which their States are committed. To be sure, they have recognised that their role as guardians of their own national constitution requires them to retain a degree of independence, even in the face of the claims made (equally understandably) by the European Court of Justice. However, they have typically been 37 See, for example, the remarks of Snoy et d’Oppeurs (1963, p. 247), one of the drafters of the Treaty of Rome, five years after the Treaty of Rome came into effect: L’ensemble du Traité du Marché Commun avait pour objet de mettre fin aux cloisonnements économiques qui avaient fait tant de tort à l’Europe et qui étaient le reflet du nationalisme exacerbé de la période entre les deux guerres. 38 See Jacobs and White, 1996, p. 3: The subject of this book brings together two threads which, however precariously, have brought developments in the ordering of international society that can only be described as spectacular if compared with the situation in 1945. One of these threads is European integration on a level to serve not only technical needs and economic interests, but also to embody a system of liberal values which crystallize centuries of political development.

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able to devise doctrinal arrangements allowing them to minimise the potential for conflict by curtailing their independent constitutional scrutiny of Community measures in individual cases, provided a baseline of Community judicial protection remains in place. 4. Conclusion: Negotiating the Problem of Standards I have therefore suggested that while the problem of standards is a genuine one, there are good reasons why it has not proven apocalyptic for the Community legal order. By way of conclusion, the following comments are addressed to the question of how the problem of standards might continue to be negotiated in the future development of Europe’s overlapping legal systems. First, the recently concluded Community Charter of Fundamental Rights should not give rise to complacency that the problem of standards is somehow thereby resolved. In fact, whilst that document may provide a resource for justifying a decision by the European Court of Justice to recognise a given right as falling within the general principles of Community law, it does not assist in determining what standard of protection should then be given to that right. The document contains a predictable list of rights recognised by most national constitutions together with some additional elements reflecting the distinctive preoccupations of the Community legal order. The problem therefore remains of how to choose amongst differences of interpretative approach which are manifest from state to state. Secondly, it is argued by some that the most legitimate method for developing Community rights review in the future is by means of a heightened and more explicit judicial dialogue between the national and Community Courts. In particular, it is sometimes suggested that each level of the judicial hierarchy should approach the interpretation of rights in a way sensitive and sympathetic to the other’s jurisprudence. Such an approach may at first sight seem an attractive one, appealing to notions of rational consensus through deliberation. However, on closer examination, it proves highly problematic. On the one hand, the European Court of Justice, which must make law for the whole Community, cannot be equally sympathetic to all national jurisdictions in all cases because of the many problems identified with the maximalist solution above. On the other hand, there are significant perils for Community law if national courts are prepared in each individual case to examine the compatibility of Community norms with national rights protections and commence a ‘dialogue’ with the European Court of Justice about any problems they identify. Such an approach can only increase the risk that on some occasions Community law will be disapplied within a given state, preventing its uniform and effective operation across Europe. Moreover, as soon as one national court reverts to individualised re-

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view, there will be pressure brought to bear on other national courts to take a similarly strong line in protecting national constitutional values. The potential would thereby be amplified for a disruptive variegation of Community law.39 The better approach, in my view, would be to preserve intact the self-restraint which has grown up on the part of national courts when applying their constitutional documents to Community law. Such an approach does not involve a complete abandonment of constitutional oversight, but merely an acceptance that, provided that an acceptable level of rights protection is secured by the Community courts, it will not be necessary for national courts to undertake rights review on a case by case basis. That it has been sustained thus far is partly explicable, as I have argued, on the basis of a shared hermeneutics of reconstruction. Inevitably, as the traumatic events of the mid-twentieth century recede, the emphasis of justification has shifted, but there is still a firm basis for judicial restraint in the requirements of a Community legal system which is in turn an essential pre-requisite of flourishing political and economic collaboration in Europe. Thirdly, it is in my view appropriate for the Community legal order to show an equivalent restraint of its own, and to limit its involvement in fundamental rights review to those circumstances justified by functional and moral necessity. It is by no means self-evident that such necessity attaches to the review of Member States’ actions performed in derogation from their Community legal obligations. In that context, no obvious threat to the uniformity and effectiveness of Community law would arise in the absence of an application of Community rights review. Accordingly, Weiler suggests it might be appropriate to adopt a lesser standard of review in the context of Member States’ conduct in derogation, equivalent to that provided by the ECHR rather than the usual higher standard which Community law would normally apply.40 Advocate General Francis Jacobs, writing extra-judicially, has recently gone further and has raised the question of whether any Community rights review is necessary in such a context, given the protections accorded by the ECHR as well as national constitutions.41 It may therefore be that, for the future, the problem of standards will best be dealt with by using the same basic technique as hitherto: a skilful alliance of strategic doctrinal development with a forceful articulation of the needs of, and need for, the Community law system as lynchpin of European integration.

39 For a recent argument against enhanced judicial ‘dialogue’, see Baquero Cruz, 2002, especially chapters 2 and 4. 40 Weiler, 1999, p. 126. 41 Jacobs, 2001, pp. 331, 337–338.

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References Baquero Cruz, J. (2002), Between Competition and Free Movement, Oxford, Hart Publishing. Cotterrell, R. (1989), The Politics of Jurisprudence, London, Butterworths. Craig, P./De Burca, G. (2003), EU Law, Oxford, Oxford University Press, 3rd ed. Dworkin, R. (1991), Law’s Empire, London, Fontana Press. Habermas, J. (2001), “A Constitution for Europe?” in New Left Review, 5–26. Jacobs, F. G. (2001), “Human Rights in the EU: The Role of The Court of Justice”, in 26 ELRev. Jacobs, F. G./White, R. C. A. (1996), The European Convention on Human Rights, Oxford, Clarendon Press, 2nd Ed. Legrand, P. (1996), “European Legal Systems are not converging” in International and Comparative Law Quarterly 52. McGee, A./Weatherill, S. (1990), “The Evolution of the Single Market – Harmonisation or Liberalisation”, 53 MLR. Montesquieu, Ch. (1989), The Spirit of the Laws, Cambridge, Cambridge University Press. Nozick, R. (1974), Anarchy, State and Utopia, Oxford, Blackwell. Poiares Maduro, M. (1998), We the Court, Oxford, Hart Publishing. Rawls, J. (1993), “The Law of Peoples”, in S. Shute and S. Hurley (eds.), On Human Rights, New York, Basic Books. Snoy/D’Oppeurs, (1963), “La Notion de l’Intérêt de la Communauté à l’Article 90 du Traité du Rome sur le Marché Commun – Rapport Internationale”, in Rivista di Diritto Industriale. Stone Sweet, A. (2000), Governing with Judges: Constitutional Politics in Europe, Oxford, Oxford University Press. Sunstein, C. (1989), “Interpreting Statutes in the Regulatory State”, in 103 Harvard Law Review. Watson, A. (1976), “Legal Transplants and Law Reform”, in 92 LQR 79–84. Weiler, J. H. H. (1999), “Fundamental rights and fundamental boundaries: on the conflict of standards and values in the protection of human rights in the European legal Space” in Id.: The Constitution of Europe, Cambridge, Cambridge University Press.

Right to Proof and Rationality of Judicial Decisions* Jordi Ferrer Beltrán 1. Introduction One of the most common intuitions as far as the law is concerned is that one of its main functions is to direct the conduct of those governed by its rules. It is thereby supposed that the intention behind enacting rules of law is that those governed by them carry out or refrain from certain patterns of behaviour, e. g. paying taxes, killing, driving on the right-hand side, etc. I am aware of provisions in juridical material that do not contain prescriptions, and which therefore do not govern anybody’s conduct. However, I believe that it can be said that the presence of prescriptions in this juridical material is inherent in the idea of law. I also do not believe that the only intention of legislators when passing prescriptive regulations is to direct the conduct of those governed by these norms. Of course, they may have various political reasons, or may confer on the regulations enacted a symbolic nature, etc. However, I think that in general it can be said that the main aim is to motivate behaviour. If that is the case, it is appropriate to base oneself on this fundamental intuition in order to determine the function of the judicial process in the overall framework of the functioning of the law. You will agree with me that I will have contributed nothing to common juridical culture when I say that the main function of the judicial process is to determine whether certain facts have occurred which are linked by law to certain juridical consequences, and the imposition of these consequences on individuals as anticipated by the law. In short, the function of the process is to apply the law. However, although this appears to be a banal truth, it has significant theoretical implications with regard to judicial establishment of the facts. This therefore means that it must be sustained on a prima facie basis that it is the descriptions of these facts which are included in the judicial reasoning concerning the application of the norms (see Alchourrón and Bulygin, 1989, p. 313 and Bulygin, 1995, p. 22). If this were not the case, citizens would have no reason to behave * I want to express my gratitude to several friends and colleagues for their accurate observations and critical remarks. I am particularly indebted to Manuel Cachón, Bruno Celano, Daniel González Lagier, José Juan Moreso, and Michele Taruffo.

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according to the provisions of the law. In other words, this conduct is relevant in the application of the juridical consequences anticipated in the regulations only if the conduct of those governed by the regulations is what is described in judicial reasoning. If the opposite were true – if it were the judge who constituted the factual antecedent in the application of these consequences – the behaviour of citizens would not be motivated, as it would be irrelevant for the purposes of this application.1 It is within this framework that it is possible to understand the full extent of what is known as the right to proof. It is no coincidence that in general this right is considered to be a specification or one arising out of the right to defence.2 This is expressed literally in Article 24 of the Spanish Constitution, which acknowledges that all parties in a process have the “right . . . to use the pertinent means of proof for their defence”. This right is also specifically acknowledged in article 6.3 d) of the European Convention on the Protection of Human Rights and Fundamental Freedoms.3 In other cases, although a right to proof is not specifically constitutionally formulated, constitutional jurisprudence and doctrine have also derived it from the right to defence.4 The basic idea is that the citizen has the right to “demonstrate the truth behind the facts on which he/she bases his/her [procedural] claim” (Taruffo, 1984, pp. 77–78).5 In other words, the citizen has the right to prove that the facts linked by law to juridical consequences have or have not taken place.

1 However, this is the theory of those who believe that a fact cannot be said to have been proved if it has not been declared as such by a judicial body and who go so far as to say that saying a fact is proved is the equivalent of saying that it has been declared to be proved by a judge or jury. 2 In this sense, see for example Gimeno Sendra, 1988, pp. 100–101; Díaz Cabiale, 1992, p. 62 and Picó, 1996, pp. 35–38. Spanish constitutional jurisprudence also follows this pattern. See the Judgments of the Spanish Constitutional Court 97/1995, 246/1994, 30/1986. 3 It should be pointed out that the right acknowledged in the European Convention refers literally to witnessed proof and to the penal field. However, the doctrine has interpreted this right to be a part of a generic guarantee to due process and, as a consequence, has extended it to all types of evidence and all jurisdictions. See Denti, 1994, p. 674; Picó, 1996, p. 31; Velu, 1973, p. 326; Walter, 1991, p. 1195. The jurisprudence of the European Court of Human Rights has also admitted this wider interpretation, for example in its Judgment on the Bönisch case (6 May 1985). 4 Thus, in Italy, for example, the first studies that refer to the right to proof date from the 1970s (see, among others, Comoglio, 1970, pp. 148 ff. and Cappelletti-Vigoriti, 1971, pp. 637 f.). The jurisprudence of the Constitutional Court also considers that the right to proof is an essential part of the right to defence, which is specifically acknowledged by the Italian Constitution. 5 In this respect, the Italian Constitutional Court has declared that “restricting the search for the truth is opposed to guaranteeing the right to defence” (S. C. Cost. 146/ 1987, 23 April).

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Only by these means can correct application of the law be ensured, as well as appropriate juridical security, as I will argue later. If this is the case, it would be a good idea to analyse what this right to proof consists of in greater detail and what its implications are for the notion of judicial proof. In particular, I aim to show that only by means of a rationalist conception of proof (which rejects the link between proof and a purely psychological convincing of the judge) is it possible to implement the full extent of the right to proof and, as a consequence, the right to defence as well. In this study, I will not develop a model of rationality adapted to judicial decisions regarding facts. That will be the focus of the continuation of this research. However, I would like to point out that despite the fact that they are possible different models, I believe that a minimum requirement of rationality is that the decision is based on reasons that justify it on the basis of some intersubjective criterion. The problem of the link between the proof and the judge’s conviction or belief is that it denies this possibility of inter-subjective control and therefore the application of rationality. 2. Defining Features of the Right to Proof It is now a good idea to move on to analysing the different defining features which comprise the right to proof. It should be noted that these features are not independent of each other – for each of them to make sense, they must be accompanied by the others. The first of these features is the right to produce all available evidence to demonstrate the truth of the facts on which the claim is based. This is of course a subjective right, which can be exercised only by the individual who is a party in a judicial process. The only intrinsic limitation to which it is subject is the relevance of the proposed evidence. The right may therefore be reformulated to include only the use of proofs that are relevant to demonstrating the truth of the alleged facts. The due protection of this right supposes that the obligation to admit all the relevant proofs provided by the parties is imposed on judges and Courts.6 This means that all proofs that may be hypothetically suitable for directly or indirectly providing elements of judgment pertaining to the facts to be proved must be admitted (Taruffo, 1970, pp. 54 ff.). On the other hand, limitation of the chance to provide relevant proofs imposed not by the judging body, but legisla6 This is one of the crucial points in the protection of the right. The judgment regarding the relevance of the proposed proofs to be carried out by the judging body should not be used as an unduly restrictive mechanism that impedes the exercise of the right and, as a consequence, alters due process. See Vigoriti, 1970, p. 97; Goubeuax, 1981, p. 281 and Taruffo, 1984, p. 78.

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tively, would also be a violation of the right to proof. In this respect, limitations on the chance to provide proofs that are not justified by the protection of other fundamental rights in dispute must be considered unconstitutional (Perrot, 1983, pp. 96–100).7 Finally, it should be remembered that the legislative mechanism of imposing irrebuttable presumptions may also be a hidden means of illegitimately preventing proof of a fact relevant to the claim of one of the parties (Goubeaux, 1981, p. 297). It is therefore wise to study the justification for the imposition of a presumption that does not admit disproof in light of a possible violation of the right to proof. The second element involved in the right to proof is the right to proofs being heard in the proceedings. It is obvious that the mere admission of the means of proof proposed by the parties makes no sense if it is not followed by an effective hearing of evidence in the proceedings. This has been repeatedly set out in doctrine (see Perrot, 1983, pp. 108 ff.; Taruffo, 1984, pp. 92 f.; Picó, 1996, pp. 21–22) and also in jurisprudence. The Spanish Constitutional Court, for example, has clearly stated that “the effect of non-implementation of evidence is or may be the same as its prior inadmission” (Judgment of the Spanish Constitutional Court 147/1987). The third defining feature of the right to proof is the right to a rational evaluation of the evidence heard. The right to proof is commonly considered not to be a right to a specific evidential result. Because of this, and because of an exaggerated devotion to the judge’s discretion in the evaluation of evidence, it is not strange that doctrine and jurisprudence often consider that the extent of the right to proof is limited to the two features above. However, in my opinion, this restriction is manifestly unsatisfactory. As Taruffo (1984, p. 106) has pointed out, acknowledgement of the parties’ right to the admission and hearing of evidence relevant to demonstrating the facts on which they base their claim is “an ineffective and merely ritualistic guarantee if it does not ensure the effect of evidential activity, i. e. the evaluation of evidence by the judge in the decision”. This requirement for rational evaluation of evidence may be broken down into two different areas. Firstly, there is the requirement that the evidence admitted and heard is taken into consideration for the purposes of justifying the decision that is adopted. Secondly, there is the requirement that the evaluation made of the evidence is a rational one. The first of these requirements is often not fulfilled in the usual, what is known as, “overall assessment of the evidence” (Montero Aroca, 1988, p. 251; Picó, 1996, p. 28). It should be remem7 Indeed, as Taruffo has pointed out (1984, p. 80), the limitation on the admissible means of proof may imply an absolute impediment on the procedural party proving the facts on which his/her claim is based, when the only proofs available are of the type that legally are not considered admissible.

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bered that while a decision regarding the facts cannot be made without this overall evaluation, this cannot be used to avoid a specific evaluation of each piece of evidence provided. Moreover, only after evaluating the evidence on an individual basis can it be thoroughly evaluated on an overall basis. Because of this, cases in which some of the evidence admitted and heard has not been taken into consideration at the time of decision must be considered as violations of the right to proof.8 On the other hand, it is clear that taking all the evidence admitted and heard into consideration is not enough. It is also necessary for the evaluation of it, on both an individual and overall basis, to adapt to the rules of rationality.9 Only in this way can the parties’ right to proof be taken to be respected, i. e. by producing a certain evidential result that serves as the basis of their claims. Moreover, a minimum acceptable level of juridical safety can be guaranteed only if it is also guaranteed that the proven facts to which the law is to be applied have been rationally obtained based on the items of evidence contributed to the proceedings. Finally, the last feature which gives the right to proof its due extent is the obligation to justify judicial decisions. Although it is rare to refer to this aspect in terms of subjective right, I can see no reason for not talking about a right to obtain a sufficiently and specifically justified decision (Taruffo, 1984, p. 112). In the field of reasoning concerning the facts, this justification must deal with both the facts that the judge declares to be proven as well as those that the judge declares to be not proven. The obligation to specifically justify judicial decisions has been included in some constitutions, such as the Spanish Constitution (Art. 120.3), and is also present in article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The approach that I present in this study is not alien to the Spanish Constitutional Court’s repeated declarations (see for example Judgments of the Spanish Constitutional Court 14/1991, 55/1988, and 13/1987) that the obligation to justify judicial decisions expresses “the judge’s bound by law”. In other words, it is related to the judge’s obligation to apply

8 Nevertheless, the Spanish Constitutional Court has specifically declared that “The Constitution does not guarantee the right to each and every one of the proofs provided by the parties in dispute being the object of an explicit and differentiated analysis of the part of the judges and Courts, to whom, in fact, the Constitution does not prohibit nor cannot prohibit the overall appraisal of the proofs provided” (Order 307/1985). 9 The evaluation of proof in the juridical field may be, and often is, subject to other types of regulations. In particular, there are regulations concerning legal evidence in many of the contemporary juridical systems, which indicate to the judge which evidential result should be extracted based on a given prior factual datum (Perrot, 1983, p. 113). In any case, what is stipulated in the text is limited to the field of free evaluation of evidence.

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the law,10 which is in turn, as was pointed out at the beginning, the main function of procedure. However, constitutional and ordinary jurisprudence have not been very rigorous in terms of checking the lack of justification in the area of proven facts. Neither has majority procedural doctrine gone much further.11 I think this is for two types of reasons. Firstly, there is the lack of a normative theory that establishes the criteria of rationality governing the area of free evaluation of evidence. In the absence of clear criteria, the free nature of the evaluation, its link to the judge’s intimate conviction, judicial discretion in the field of evaluating evidence (which tends to arbitrariness when there are no checks), etc., tend to be maximised. Secondly, and in line with the above, a markedly subjective notion of evidence and proven fact is used that does not distinguish between a fact being proved and being declared proven by a judge.12 3. The Notion of Proof in Law The definition of juridical proof in subjectivist terms is characterised in the vast majority of cases by its assimilation into the psychological conviction of the judge or jury as regards the facts having occurred. Saying, therefore, that a (statement that affirms the occurrence of a) fact is proven means that the judge has reached the conviction that this fact occurred. And indeed, this is the conception among the majority of Spanish (and I believe European) specialists in procedural law.13 10 This obligation to justify decisions has not, however, been linked to the right to proof by constitutional jurisprudence, but rather in a more general way to the right to due process (see the Judgment of the Spanish Constitutional Court 122/1991 in all cases). 11 The recent comments by an important Spanish expert in procedural law are a good example: “[It] is neither a legal nor rational requirement for each judgment to give the details behind the reasons for each declaration of positive certainty of a fact (that is, the declaration of ‘proven fact’) (and where applicable, very rarely but possibly, declarations of negative certainty: certainty of the non-existence of a fact) . . . neither is it a legal or rational requirement to explain in detail why some facts have been considered as doubtful (‘not proven’) despite the evidential resources deployed. It is not reasonable to impose on jurisdictional bodies maximum expressive labours in each judgment, which does not take into account the workload . . . on them and which are counter-productive to the provision of justice for all in a satisfactory manner. Neither does it seem reasonable to ask them to express the contents of the internal psychological processes of conviction, which are often partially objectifiable, it is true, but also partially within the field of the ineffable” [Author’s italics] (De la Oliva, 2002, p. 514). 12 A criticism of this conception can be found in Ferrer, 2004, pp. 31 ff. and in more depth in Ferrer, 2002, pp. 82 ff. 13 They thus maintain that the basic objective of trial activity is that of “convincing the judge of the veracity of facts that are affirmed to be existent in reality” (Cortés Domínguez, Gimeno Sendra, and Moreno Catena, 2000, p. 231). Cabañas states very

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The proof of a fact is therefore conceptually linked with the acquisition on the judge’s part of a mental state consisting of the belief in the occurrence of this fact. As a result, it is not surprising that the requirements for justifying the judicial decision as regards the facts is weakened. As De la Oliva specifically states (2002, p. 514), it does not “seem reasonable to ask for the expression of what pertains to internal psychological processes of conviction, which are often indeed partially objectifiable, but also partially within the field of the ineffable”. The only thing that can be required in these subjectivist terms is that the decision-making body expresses the causes that have led it to believe in the occurrence of the fact in question. But expressing the causes of a belief, when it is possible, is something very different from justifying a decision.

clearly that “the word ‘proof’ identifies . . . the . . . psychological state of conviction of the judge with regard to the veracity of all or some of the facts alleged by the parties. Indeed, a statement of fact shall not be ‘proven’ . . . if finally . . . it does not lead the judge to the certainty of the physical reality of the event described in this statement” (Cabañas, 1992, p. 21). On the same subject, see also, for example, Guasp (1956, pp. 300–301) and Miranda Estrampes (1997, pp. 45 ff.), who includes abundant additional bibliographical references. Finally, this conception has on occasion been admitted to Spanish law; hence Art. 741 of the Ley de Enjuiciamiento Criminal (LECr, code of criminal procedure): “The Court, appreciating according to its conscience the evidence examined in court, the reasons alleged by the prosecution and defence and the declarations of those standing trial, will give a ruling within the time period established in this Code.” This article has been interpreted by the Spanish Supreme Court for decades in subjectivist and irrationalist terms, a good example of which is the ruling of the Supreme Court of 22 December 1980, which states: “Article 741 of the Ley de Enjuiciamiento Civil (LEC, code of civil law procedure) attributes to [the Court] an absolute and sovereign faculty of evaluation of the evidence examined, in which no hierarchy or pre-eminence of some means of proof over others is admitted, and by which the aforementioned Court, may freely form its conviction with regard to the real problems relating to the proceedings being dealt with, without submitting it to rational criteria of healthy criticism, logic or any other that is not that of its fair and impartial conscience”. These and other examples, as well as an interpretative proposal of Article 741 LEC that aims to make it compatible with the judicial obligation to justify rulings, may be found in Igartua, 1995, pp. 34 ff. More recently, the jurisprudence of the Constitutional Court (based on the ruling of the Constitutional Court 31/ 1981, of 28 July) has introduced limitations on the irrationalist or subjectivist interpretation of Article 741 LECr. This line of jurisprudence has also been admitted, although not taken to its final conclusion, by the Supreme Court, which now says, for example, that “the mere subjective certainty by the court of criminal jurisdiction that probative evidence from which the guilt of the defendant is reduced has indeed taken place is not sufficient. The evaluation in ‘conscience’ to which the legal provision refers should not be understood or made equivalent to a closed or unapproachable personal and intimate criteria of the judge, but rather a logical evaluation of the evidence, not exempt from patterns or directives of an objective nature, which deals with a depiction of the facts in an appropriate assembly with this set, to a greater or lesser extent, of accrediting and revealing details, that it has been possible to include in the proceedings. . . . ‘Rational criteria’ is what goes hand in hand with logic, science and experience, leading arbitrariness, supposition and conjecture to one side” (Judgment of the Supreme Court, 12 November 1996).

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In my opinion, however, this conception cannot account for the functioning of the mechanism of proof in law. There are various reasons preventing it.14 Firstly, it supposes the conceptual impossibility of considering that the judge or decision-making body on the proven facts has made a mistake. Hence, saying that the fact is proven is the same as saying that a given individual in a position of authority believes that this fact has occurred. If this is the case, there is no inter-subjective criterion that allows it to be said that the individual in question has made a mistake. Moreover, in this case, as was mentioned at the beginning of this study, it cannot be sustained that the judge is fulfilling a function of applying the law. This function supposes that a judge certifies that a fact has occurred and applies the juridical consequence anticipated by law to it. Nevertheless, it can in no way be sustained that the judge is applying the law if it is he or she who constitutes (invents) the facts of the case.15 For all these reasons, in my opinion this conception implies the assumption of a radical juridical realism. What is more, within this framework the extent of the right to proof is reduced to a right to influence the judge’s conviction, which is indeed quite a strange right. Secondly, it is well known that on many occasions judges take decisions regarding facts that contradict their own beliefs,16 something that cannot be explained by the notion of proof that is being analysed. Thirdly, belief is by definition independent of its context (Bratman, 1992, p. 3; Engel, 1998, pp. 143–144; Id., 2000, p. 3; Clarke, 2000, pp. 36 ff.). That is, our beliefs are caused by a multitude of factors and information and may change over time. However, at any given point in time “t”, we may believe “p” or not believe it, but we cannot believe “p” as regards context1 and believe “nop” for context2. We cannot, for example, believe or not believe that Madrid is a noisy city depending on whether it is Monday or Tuesday or whether the mayor of the city or an ecologist is asking the question. Although it is perfectly possi14 A more detailed explanation of these problems can be found in Ferrer, 2002, chap. III. 15 This does not mean that, in fact, judges and juries do not on most occasions have the intention of finding out what really happened. It only supposes that if saying that something is proven is the equivalent of saying that the judge has declared it proven because he/she is thus convinced, this initial aspiration may be conceptually and juridically irrelevant. Carnelutti (1947, p. 55) states that “Proving . . . does not mean showing the truth of the facts in dispute but rather determining or establishing those facts formally by means of specific procedures” [Author’s italics]. 16 The cases are highly varied and range from the case in which the judge has an irrational belief that he does not use in his reasoning, to cases in which the judge has items of evidence available that are not included in the proceedings that form his belief but which he cannot use in his decision, and to cases in which the judge bases his belief on some inadmissible evidence that he cannot use when taking the judicial decision.

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ble to answer differently to both, in one of the two cases we will be lying with regard to our belief. And the judge cannot, for example, believe that Mary killed Peter when acting as the judge and not believe it when not acting as a judge (as a simple citizen). However, justification of the judicial decision regarding the facts is relative to the elements of judgment brought to the proceedings and is therefore by definition contextual. As a result, if the elements of judgment available vary, the conclusion reached based on them will also vary. 4. Rational Justification and Application of the Law The final part of this study must of necessity be dedicated to justifying judicial decisions regarding facts. To deal with this point, we should look at two premises. The first is the distinction between normative justification and rational justification. Judicial decisions concerning facts are determined by various types of rules of law, which regulate the means of proof, trial activity, and the probative result. This latter type of regulation, in particular, regulates the result, the conclusion that the judge must reach based on given elements of judgment. There are, in turn, two types of regulations in this respect – some prescribe what the judge should declare is proven when a certain element of judgment is available in the process. These are what are known as rules of legal evidence. It will be said that the judge’s decision is justified in terms of legal regulations if it complies with what is prescribed by these rules. In most cases, however, the judge’s decision is subject only to the principle of free evaluation of the evidence. As I said previously, this principle too often has been resorted to in order to justify the judge’s absolute freedom when determining proven facts, thereby giving rise to freedom in arbitrariness. In my opinion, however, it should be understood that evaluation of the evidence is free only in the sense that it is not subject to the juridical regulations that a specific probative result imposes (see Taruffo, 1992, pp. 369–370). However, the lack of juridical rules that regulate the evidentiary result in these cases does not suppose a total absence of any type of regulation. Hence, the drift to arbitrariness can be avoided only if it is sustained that the judge’s freedom to determine the probative results of the case is defined by the general rules of rationality and logic.17 Because of this, it can be said that the justification of judicial decision is epistemic or rational in these types of circumstances. 17 Moreover, it may be understood that this is their only limitation, and also of a juridical nature. Determination of the proven facts carried out against the rules of logic or rationality, in general, would thereby suppose an infraction of the law. To this end, it is enough to interpret the rules establishing the free evaluation of proof in

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The second basic premise for a correct definition of the notion of justification of judicial decisions concerning facts is that this justification is always related to a set of elements of judgment (Mendonca, 1997, pp. 77–78). Indeed, a statement of the type “it is proven that p” is in reality an incomplete statement, given that it must of necessity be related to a perfectly identified set of elements of judgment. This set of elements of judgment will be made up by the means of proof admitted and heard in the judicial process. If we wish to account for how the mechanism of proof in law (and perhaps also in the sciences) operates, it is essential to understand that justification of the declaratory statements of proven facts relates to all the elements of judgment (or means of proof) involved in a process. This explains that two incompatible decisions regarding the occurrence of the same fact may be simultaneously justified. Hence, for example, the initial decision adopted by a judge or jury may be perfectly justified when considering the available elements of judgment. Subsequently, in the second instance, a new element of judgment is included that was not previously available and, based on the new range of elements of judgment, the Court of the second instance may take a decision that is incompatible with that of the first. There is nothing unusual in this situation – the two decisions may be justified (and also unjustified) given that both are justified as regards the different sets of elements of judgment. However, this latter point has important consequences. Many authors have sustained that the truth of the statement that is declared proven is a necessary condition so that it can be said to be justified.18 In other words, the truth of a statement will be a necessary condition, although not sufficient, for saying that it is proven to be justified. And this seems consistent with the initial intuition of this study, which is that it only can be said that the judge has applied the law when the factual premise of his or her reasoning turns out to be true. This is a significant problem, given that the requirement for the truth is incompatible with the intuition that the justification for judicial decisions regarding the facts is related to the range of elements of judgment available in the proceedings. that they prescribe evaluation by means of the use of general rationality. The jurisprudence of the Spanish Supreme Court also appears to admit this thesis. See for example the Judgment of the Supreme Court of 20 January 1990 (R. 460), which states that “the infraction of the law . . . takes place not only when a fact is incorrectly subsumed under a legal prescription, but also when the proven fact is determined infringing the rules of logic, the principles of experience or contradicting scientific knowledge”; and the Judgment of the Supreme Court of 8 October 1990 (R. 7816), which similarly points out that “the correction of the Court’s reasoning is called into question as regards the determination of proven facts. This objection may be a matter for an appeal to the Supreme Court due to an infraction of the law”. It is a shame, however, that the Supreme Court has not taken its own doctrine to its conclusion in order to check on the rationality of the evaluation of proof carried out by lower-level courts. 18 See Bentham, 1923, vol. I, p. 30; Alsina, 1961, p. 225; Wróblewski, 1981, p. 174; and Gascón, 2001, p. 100, among many others.

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The reason for this is very simple – the truth of the statement that is declared proven does not depend on the elements of judgment available, but rather on their correspondence with the world. It is therefore a good idea to try and explain the apparent contradiction between these intuitions. 5. Justification of Rules and Justification of Acts I think that a suitable analysis of the notion of judicial decision may clarify this situation under consideration. Ricardo Caracciolo (1988, p. 41) has clearly shown the ambiguity of the expression “judicial decision”. In one sense, it refers to the act of issuing a judicial resolution and in particular of an individual rule. In another sense, it refers to the result of this act, i. e. to the individual rule issued (in less precise words, if desired, than the content of the decision). This ambiguity between the decision as an act and the decision as an individual rule may give rise to some purely verbal disagreements and, in particular, may perhaps explain the intuitions in conflict regarding the justification of judicial decisions.19 The necessary and sufficient conditions for the judicial decision as a regulation to be justified and for the judicial decision as an act to be justified should therefore be considered. With regard to the decision as a regulation, it seems clear that the conclusion which is reached shall be justified only if it arises from the premises, factual and normative, adopted in the reasoning.20 Moreover, however, it seems also demandable that the reasoning is sound, i. e. that the premises used are true ones (Beccaria, 1764, pp. 35 ff.; Ferrajoli, 1989, p. 43). In other words, justifying an individual rule consists in showing that it is the result of the application of a general rule to a fact (which may be subsumed in the event of this general rule). And it is only possible to apply a general rule to a fact if it has really occurred and therefore if the factual premise which describes it is a true one. In conclusion, a judicial decision as a rule may be justified if, and only if, it arises from the premises of reasoning and the factual premises are true ones (Caracciolo, 1988, p. 43). On the other hand, the judicial decision as an act does not admit a notion of justification as in the above case for a simple reason – there are no logical relationships between norms and acts or between propositions and acts. For this reason, it cannot be said that the decision-act is justified if it arises from factual and normative premises. However, a sense of the notion of justification that can 19 Ferrua (1999, pp. 217 ff.) also makes a distinction between the two means of justification of judicial decisions mentioned by Caracciolo. 20 Which corresponds to the idea of internal justification defined by Wróblewski (1971, p. 412).

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be used for this case refers to the idea of compliance with or non-compliance with the regulations that govern this act (Caracciolo, 1988, p. 44). Hence the judicial decision, in a sense of the act of adopting a given resolution, shall be justified if its completion is permitted or obligatory according to the regulations that govern this procedure. It may thus occur that the act of adopting a judicial decision is justified and, on the other hand, the content of the decision – i. e. the individual regulation – is not. This enables the two contradictory intuitions previously mentioned to be accounted for as it explains that we consider it unjustified, for example, to find someone guilty for something they have not done, and that at the same time, we consider the act of decision to condemn them right or justified in light of the available elements of judgement.21 But if we are faced with two different meanings of “justification” and “judicial decision”, it may be that the act of decision is justified and the content of the decision, the individual regulation, is not. In this case we must consider the juridical effects that arise from these divergences. Obviously, this is a subject that is the focus of particular regulation by each juridical system and a general response to the question cannot be given. Moreover, in each juridical system, unitary juridical consequences may not be anticipated for all the cases of unjustification of the decision-act and the decision-regulation. In the case of the decision regarding proven facts, a distinction should also be made between the act of decision and its content. The latter consists of the factual premise (or proposition) included in the decision-making reasoning. According to the analysis that has taken place, the decision-act will be justified if the real proposition is proven. It may in turn be said that proposition regarding the facts is proven if it is rationally acceptable, i. e. if there are sufficient elements of judgment in its favour in the judicial proceedings.22 And a normative 21 Moreover, a distinction such as the one mentioned gives rise to another problem, i. e. the relationship between substantive and procedural rules when justifying a decision (Nesson, 1985, p. 1357). If we consider the justification of the decision as an individual rule, the general rules involved are basically substantive ones; that is, those that establish the juridical consequences for the case being judged and that form part of the reasoning as premises. However, the justification of the judicial decision as an act depends on compliance with the rules that regulate it, i. e. mainly procedural rules. This reconstruction enables a response to be given to a recurring question: Does the law prescribe the punishment of those who have committed a crime or only those whose crime has been proven? I think that the answer is twofold – the substantive rules link the juridical consequence-sanction involved in committing a crime and only in these cases is the individual rule applied justified. Procedural rules regarding proof showed that only in cases in which the committing of the offence is proved is the decision-act containing the imposition of the sanction justified. 22 A detailed analysis of the notions of acceptance and acceptability applied to the decision concerning facts may be found in Ferrer, 2002, chap. III. Note the difference between the fact that the proposition is rationally acceptable as a description of the

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theory regarding the conditions in which the elements of judgment may be considered sufficient (as regards the acceptability of the factual premises of reasoning) will of course be necessary. The continuation of this research will deal with precisely this point. For the moment however it should be pointed out that these conditions, in the field of the free evaluation of evidence, refer to general rationality and epistemology. From the point of view of content, however, the premise will be justified if it is true. Modern juridical systems normally establish limits on the reconsideration of content of the decision, which in our case is the discussion regarding the truth of the factual premises. The existence of appeals by which this content may be called into question is anticipated. Nevertheless, once the decision has become firm (either because of the exhaustion of possible appeals or because the appeals available have not been used), the law makes the interest that processes have a more or less defined time limit prevail, and confers definitive juridical effects on the decision adopted. There are just a few cases in which the unjustification of the decision-rule (because one or several of the factual premises are false) may permit a fresh reconsideration of the question (even when the decision-act is justified), despite the judgment being a firm one (Ferrua, 1999, pp. 217–218). In these circumstances, extraordinary legal remedies are anticipated, such as the extraordinary appeal against a judgment in Spanish law.23 Finally, in conclusion, the conditions in which the right to proof shall be satisfied as far as the evaluation of the evidence provided is concerned should now be considered once again. In my opinion, the right to proof will be satisfied if, and only if, (a) all the relevant evidence provided by the parties has been admitted and heard, and (b) if it has been evaluated according to the rules of logic and rationality so that the declaration of proven facts that is made may be considered rationally acceptable in light of the elements of judgment. The conclusion will be acceptable if it is a description of the facts that has the greatest support by the elements of judgment brought to the proceedings as a whole and is therefore the hypothesis which may rationally be considered closest to the truth.

facts that really occurred, and it being accepted. Acceptability is a regulatory notion (and is subject here to the rules of rationality). Acceptance only supposes the use of the proposition in the decision-making reasoning (Cohen, 1989, p. 368; 1992, p. 4), which is a contingent empirical detail. Acceptability is the criteria by which it is said that a proposition is proven. Acceptance, however, is connected to the fact that it has been declared proven. They may both coincide, of course, but it is not conceptually necessary that this is the case. 23 See Arts. 510 and ff. of the LEC for the extraordinary appeal against a judgment in civil proceedings and Arts. 954 and ff. of the LECr in criminal proceedings.

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Lastly, note that this does not necessarily suppose that the right to proof confers a right to a given probative result (to a given declaration of proven facts). What it does confer (if something more than an “illusory and ritualistic” guarantee is desired) is a right to the evidence provided being evaluated in a certain way – according to rationality. The overall rational evaluation of all the items of evidence provided to the proceedings may give a single possible conclusion as a result. In these cases, the right to proof (and it should be remembered, the right to defence, from which it is derived) supposes a right to this probative result being declared. But this is not necessarily the case. It may be the case that, based on a given series of items of evidence, various hypotheses are equally acceptable, or that the hypothesis with the most support has a relatively low level of support. In the first case, the right to proof does not indicate which hypothesis should be chosen. The right will be respected if the declaration of proven facts takes place from among the rationally admissible hypotheses. In the second case, it may be that no statement regarding the facts should be declared proven.24 References Alchourrón, C./Bulygin, E. (1989), “Limits of Logic and Legal Reasoning”, in Martino, A. A. (ed.): Preproceedings of the III International Conference on Logica, Informatica, Diritto, vol. II, Firenze; quoted by the Spanish edition: “Los límites de la lógica y el razonamiento jurídico”, in Alchourrón, C. and Bulygin, E.: Análisis lógico y derecho, Centro de estudios constitucionales, Madrid, 1991. Alsina, H. (1961), Tratado teórico práctico de derecho procesal civil y comercial2, vol. III, Ediar, S. A. Editores, Buenos Aires. Beccaria, C. (1764), Dei delitti e delle pene; quoted by the Spanish edition: De los delitos y de las penas, Alianza, [tr. de De las Casas, J. A.], Madrid, 1998. Bentham, J. (1823), Tratado de las pruebas judiciales, EJEA, [tr. de Ossorio, M.] Buenos Aires. Bratman, M. (1992), “Practical Reasoning and Acceptance in a Context”, in Mind, vol. 101. Bulygin, E. (1995), “Cognition and Interpretation of Law”, in Gianformaggio, L. y Paulson, S. (eds.): Cognition and Interpretation of Law, Torino. Cabañas, J. C. (1992), La valoración de las pruebas y su control en el proceso civil. Estudio dogmático y jurisprudencial, Trivium, Madrid.

24 In this respect, it should be remembered that the same juridical system may require different levels of support for a fact to be considered proven, depending on the jurisdiction in question. Thus, for example, penal jurisdiction usually requires that the conclusion is supported beyond reasonable doubt. The requirements are usually less strict in civil jurisdiction.

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Cappelletti, M./Vigoriti, V. (1971), “I diritti costituzionali delle parti nel processo civile italiano”, in Rivista di diritto processuale. Caracciolo, R. (1988), “Justificación normativa y pertenencia. Modelos de decisión judicial”, in Análisis filosófico, VIII, nº 1. Carnelutti, F. (1947), La prova civile2, Edizioni dell’Ateneo, Roma. Clarke, D. (2000), “The possibility of acceptance without belief”, in P. Engel (ed.), Believing and Accepting, Kluwer, Dordrecht/Boston/London. Cohen, L. J. (1989), “Belief and Acceptance”, in Mind, vol. XCVIII, n. 391. – (1992), Belief and Acceptance, Oxford University Press, Oxford. Comoglio, L. P. (1970), La garanzia costituzionale dell’azione e il processo civile, CEDAM, Padova. Cortés Domínguez, V./Gimeno Sendra, V./Moreno Catena, V. (2000), Derecho procesal civil. Parte general3, Colex, Madrid. Couture, E. J. (1942), Los fundamentos del Derecho procesal civil, Ed. Aniceto López, Buenos Aires. De la Oliva, A. (2002), “La sentencia”, in De la Oliva, A., Aragoneses, S., Hinojosa, R., Muerza, J. and Tomé, J. A.: Derecho procesal penal5, Centro de Estudios Ramón Areces, Madrid. De Santo, V. (1988), El proceso civil. vol. II, EUDEBA, Buenos Aires. Denti, V. (1994), “Armonizzazione e diritto alla prova”, in Rivista trimestrale di diritto e procedura civile, no 3. Díaz Cabiale, J. A. (1992), “La admisión y la práctica de la prueba en el proceso penal”, in Cuadernos del Consejo General del Poder Judicial. Engel, P. (1998), “Believing, holding true, and accepting”, in Philosophical Explorations, n. 2. Ferrajoli, L. (1989), Diritto e ragione. Teoria del garantismo penale, Laterza, Roma. Ferrer, J. (2002), Prueba y verdad en el derecho, Marcial Pons, Madrid. – (2004), “ ‘It is Proven that p’: The Notion of Proven Fact in the Law”, in Associations. Jounal of Legal and Social Theory, vol. 8, n. 1. Ferrua, P. (1999), “Il giudizio penale: fatto e valore giuridico”, in Ferrua, P., Grifantini, F., Illuminati, G. and Orlandi, R.: La prova nel dibattimento penale, Giappichelli, Torino. Gascón, M. (1999), Los hechos en el derecho. Bases argumentales de la prueba, Marcial Pons, Madrid. – (2001), “Sobre la racionalidad de la prueba judicial”, in Triolo, L.: Prassi giuridica e controllo di razionalità, Giappichelli, Torino. Gimeno Sendra, V. (1988), Constitución y proceso, Tecnos, Madrid. Goubeaux, G. (1981), “Le droit a la preuve” in Perelman Ch. and Foriers, P. (eds.): La preuve en droit, Émile Bruylant, Bruxelles.

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Guasp, J. (1956), Derecho procesal civil 4, I, Civitas, Madrid, 1998. Igartua, J. (1995), Valoración de la prueba, motivación y control en el proceso penal, Tirant lo blanch, Valencia. Mendonca, D. (1997), Interpretación y aplicación del derecho, Servicio de publicaciones de la Universidad de Almería, Almería. Miranda Estrampes, M. (1997), La mínima actividad probatoria en el proceso penal, Bosch, Barcelona. Montero Aroca, J. (1988), “Los principios informadores del proceso civil en el marco de la Constitución”, in Trabajos de Derecho Procesal, Bosch, Barcelona. Nesson, Ch. (1985), “The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts”, in Harvard Law Review, vol. 98, n. 7. Perrot, R. (1983), “Le droit a la preuve”, in Effektiver Rechtsschutz und Verfassungsmäßige Ordnung – Effectiveness of Judicial Protection and Constitutional Order, Gieseking-Verlag, Bielefeld. Picó i Junoy, J. (1996), El derecho a la prueba en el proceso civil, Bosch, Barcelona. Taruffo, M. (1970), Studi sulla rilevanza della prova, CEDAM, Padova. – (1984), “Il diritto alla prova nel processo civile”, in Rivista di diritto processuale, n. 4. – (1992), La prova dei fatti giuridici, Giuffrè, Milano. Velu, J. (1973), “La Convention Européene des Droits de l’Homme et les Garanties Fondamentales”, in Capelletti and Tallon (eds.): Fundamental Guarantees of the Parties in Civil Litigation, Milano/New York. Vigoriti, V. (1970), Garanzie costituzionali del processo civile, Giuffrè, Milano. Walter, G. (1991), “Il diritto alla prova in Svizzera”, in Rivista trimestrale di diritto e procedura civile, n. 4. Wróblewski, J. (1971), “The Legal Decision and its Justification”, in Logique et Analyse, nº 53–54. – (1975), “El problema de la así llamada verdad judicial”, in Wróblewski, J.: Sentido y hecho en el derecho, Servicio editorial de la Universidad del País Vasco, San Sebastián, 1989. – (1981), “La prueba jurídica: axiología, lógica y argumentación”, in Wróblewski, J.: Sentido y hecho en el derecho, Servicio editorial de la Universidad del País Vasco, San Sebastián, 1989.

Proving Intention – Some General Remarks* Francesca Poggi ‘The thought of man is not triable; the devil alone knoweth the thought of man’ Chief Justice Brian

1. Introduction This paper is aimed at analysing some problems relating to the ascertainment of one of the mainstays of the principle of mens rea, that is, the intention. As observed by Cadoppi1, the principle of mens rea, ‘Actus non facit reum nisi mens sit rea’, is affirming itself in an almost homogeneous way throughout Europe. However, it should be pointed out that while in continental European countries mens rea has always included negligence responsibility, in common law countries, to the contrary, such inclusion has long been contested2. Nevertheless, at the present state of events the prevalent common law legal literature seems to have accepted the thesis of punishability of acts committed with criminal negligence3. It may, therefore, be held that such principle has the same contents in the various European laws. 2. The Legal Notions of ‘Intention’ ‘Intention’ and the corresponding expressions in other European languages (‘dolo’, ‘dole’, ‘Vorsatz’) are technical-juridical terms that have undergone a strong technicalisation: the use, the juridical meaning, of such expressions does not coincide with that of common language4. It seems, therefore, necessary to proceed to an introductory and brief analysis of the notion of ‘intention’ as * I wish to thank Paolo Comanducci, Jordi Ferrer Beltrán, Daniel González Lagier, Maribel Narváez, Cristina Redondo and Ruth Zimmerling for their suggestions and criticisms to a draft of this paper. I am also grateful to the participants of the Second PHD Euroconference in Legal Philosophy: Current Challenges to European Legal Thought for their helpful comments. 1 Cf. Cadoppi 1999, p. 34. 2 On this subject cf., for instance, Hart 1967, in Hart 1973, pp. 136 ff. 3 Cf. Cadoppi 1992, pp. 629 ff. 4 On this point cf., e. g., Hart 1967, in Hart 1973 pp. 120 ff.

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defined and characterised by case law and legal literature. The analysis will be carried out mainly in the light of Italian legal experience; however, as I hope to prove, many of the problems relating to the characterisation of intention and of its proof are common to legal experiences of all European countries. What in English is called ‘intention’ is known as ‘dolo’5 in Italian legal experience. The legal definition of ‘dolo’ may be found in par. 43, I comma, Italian penal code: “Il delitto è ‘doloso’, o secondo l’intenzione, quando l’evento dannoso o pericoloso, che è risultato dell’azione od omissione e da cui la legge fa dipendere l’esistenza del delitto, è dall’agente voluto e preveduto come conseguenza della propria azione od omissione”6. The legal definition, therefore, requires the joint existence of two elements: the will and the foreseeing of the harmful (or dangerous) event of which the offence consists7. On the basis of this unitary definition, Italian case law and legal literature have progressively distinguished three kinds of dolo: dolo intenzionale, dolo diretto (non-intentional), and dolo eventuale8. There is dolo intenzionale when the agent is aiming directly at the production of the typical event: for example, John sets fire to his own house in order to kill his brother Jack, who is sleeping inside. There is dolo diretto when the agent is not directly aiming at the realisation of the typical event but foresees it and accepts it as a sure consequence of his conduct9: for example, John sets fire to his house to cash the insurance money although he knows for certain that his brother Jack will perish in the fire. Finally, there is dolo eventuale when the 5 From the Latin: dolosus. From this Latin word derived also the term ‘dole’, first used in the second half of the seventeenth century by the Scottish penologist Sir George Mackenzie and still used today in Scottish legal literature and case law. However, the two terms, ‘dolo’ and ‘dole’, are not perfectly translatable: their meanings only partly coincide. Therefore it seems to me preferable to use the Italian term in the text. 6 “The offence is ‘doloso’, or ‘following intention’, when the harmful or dangerous event, which results from the act or from the omission and from which the law makes the existence of an offence depend, is willed and foreseen by the agent as a consequence of her act or omission”. 7 The harmful or dangerous event consists in the lesion or endangering of the juridical good protected by the penal norm. In so-called event offences (‘reati di evento’), such as murder, it coincides with the realisation (or attempt at a realisation) of the event in a naturalistic sense (e. g. in murder the event coincides with the victim’s death). 8 Cf., e. g., Cass. Pen. sen. nr. 3277 dated 29.03.1996; Cass. Pen. sen. nr. 7770 dated 07.08.1996. 9 Dolo diretto would correspond to dolo de consecuencias necesarias. However, according to majority case law and to part of the legal literature, there is dolo diretto, and not dolo eventuale, also when the agent foresees the harmful event as a highly probable consequence of her conduct. Cf., e. g., Cass. Pen., sez. VI, sen. nr. 6880 dated 15.04.1998, in Giust. Pen., 1999, II, 311; Cass. Pen., sez. I, sen. nr. 13544 dated 20.11.1998, in Pen Cass. 200, 374.

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agent is not directly aiming at the production of the event, but foresees it as a probable, or possible, consequence of her conduct and accepts the risk: for example, John sets fire to his house in order to cash the insurance money though foreseeing, as a possible consequence of his act, the death of his brother Jack, who is sleeping inside. According to the majority of Italian case law and jurisprudence, the essence (i. e. the defining nucleus of the concept of dolo) always consists in the will10: in particular, the three kinds of dolo, according to this opinion, differ only for the different attitudes of the agent’s will11. Indeed, although in dolo diretto and in dolo eventuale12, unlike the case of dolo intenzionale, the agent’s will is not directed at bringing about the event as an ultimate aim (e. g. murder for revenge) or as a necessary means to attain an ultimate aim (e. g. murder to inherit from the victim), such event may nevertheless be said to have been wilfully brought about by her in that it was foreseen and accepted as a consequence of the person’s act or omission. Such specifications (from the viewpoint of Italian case law and jurisprudence) are essentially inspired by the attempt at bringing the tri-partition created back to the provisions made by par. 43, I comma, p. c., which, as we have seen, defines ‘dolo’ in terms of the will. It should be said that on this point there are several different opinions. Thus, Eusebi believes that the element of wilfulness in actual fact characterises only dolo intenzionale: in everyday language, in fact, a result or an event may be said to have been intentionally wanted by an individual only when she acts in order to bring it about13. Even setting aside such positions, it seems undeniable that the non-direct intention forms (i. e. dolo diretto and dolo eventuale) are characterised by the prevalence of the representative moment. That is to say, regardless of the fact that the consequence of a certain conduct may or may not be said to have been ‘willed’ (in some sense of ‘willing’) even when it does not represent the aim in 10

Cf., e. g., Mantovani 1992, p. 320. According to Italian case law, the various forms of dolo are distinguished by the intensity of the will (thus, e. g., Cass. Pen., sez. I, 29.01.1996 in Cass. Pen., 996) or for the higher or lesser degree of adhesion of the will to the occurring of the event (cf., e. g., Pen Cass., sez. I, sen. 10795/1999 in CED Cassazione, 1999). 12 Such forms of dolo are often denominated ‘non-intentional’. In order to avoid confusion in the translation, we may group them by calling them ‘non-direct intention forms’. 13 Cf. Eusebi 1993, in particular p. 56 e pp. 66–67. According to Eusebi dolo diretto and dolo eventuale represent extensions of dolo intenzionale justifiable only if, and insofar as, they present (rectius are re-construed with the addition of) some element comparable to the will. Eusebi (p. 56, note 106) furthermore stresses the opportuneness for such extensions (which, in their turn, should in any event result as being the expression of a dimension of the will) to be expressly foreseen, if they are considered necessary, by the legislator. 11

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view of which the subject acts, it is doubtless that the structure the non-direct intention forms is centred on the (subjective) foreseeing of the harmful event. What has to be ascertained is not whether the subject acted in order to bring about the harmful event, but rather, whether the subject could foresee the event’s occurring as a consequence of her act or omission. By itself foreseeing is not, in any event, sufficient to characterise non-direct forms of dolo and to distinguish them from negligence: in particular from socalled ‘colpa cosciente’ (conscious negligence or negligence with foreseeing). Absolutely prevalent Italian case law and jurisprudence deem that for the existence of dolo eventuale there must be, together with the requisite of representation, also that of the acceptance of risk14. From this viewpoint, a subject acts with dolo eventuale when: (a) she represents to herself the possibility of a harmful event occurring; (b) she remains in doubt that it may concretely take place; and (c) she carries on with her conduct, in spite of this – even at the cost of bringing about the event and, therefore, accepting the risk that it may occur15. To the contrary, colpa cosciente is supposed to have in common with dolo eventuale the element of representation, the (initial) foreseeing of the event as a probable (or possible) consequence of the agent’s conduct, while it differs from it in that the agent, overcoming initial doubt, builds up a conviction that such event will not occur16. The distinction between colpa cosciente (conscious negligence) and dolo eventuale, as outlined by prevalent Italian case law and jurisprudence17, has undergone several criticisms. First of all, it has been observed how the criterion of the acceptance of risk, ending up in a mere foreseeing of the event18, is unable to fix the lower limit

14 Part of case law, instead, believes that there is no sense in speaking of acceptance of a risk with respect to ‘dolo diretto’: if the event is considered certain or highly probable, the author does not restrict herself to accepting the risk, but she accepts the very event that she wants (cf., e. g., Cass. Pen., sez. I, 10795/1999 in CED Cassazione 1999; Cass. Pen., sez. I, 13544/1998, in Cass. Pen., 200, 374). This trend is open to criticism in that, as we shall see presently, the distinction between dolo diretto and dolo eventuale as well as being problematic on the probative plane is also conceptually obscure. 15 Cf. Mantovani 1992, p. 321. 16 Cf., recently, Cass. Civ., sez. III, sen. nr. 8328 dated 19.06.2001, in Mass.Giur. It. 2001. German literature has likewise affirmed that intention is excluded from the conviction, the personal certainty, that the consequence corresponding to the typical fact in question will not occur. Cf. Frisch 1990, p. 545. 17 But not only Italian literature. On the distinction between the non-direct intention forms (as ‘dolo eventuale’) and the conscious negligence (as ‘colpa cosciente’) in other civil law countries cf., e. g., for Germany: Frisch 1990; Cramer 1991, par. 15; for Spain: Cerezo Mir 1998, pp. 153 ff.; Díaz Pita 1994, pp. 107 ff.; Laurenzo Copello 1999, pp. 270 ff. 18 Rectius: in a forecast that was not successively overcome by the (subjective) certainty that such an event cannot occur.

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of dolo with respect to conscious negligence and, if it is rigorously followed, implies an excessive expansion of charges for intentional responsibility19. Furthermore, the very definition of colpa cosciente appears to be extremely objectionable on a theoretical plane. Thus, Eusebi observes how there are problems relating to the very possibility of actually depicting the succession of psychological states prospected, which perhaps answers requirements of systematic clearness more than it reflects the reality of things20. If a subject has initially represented to herself the possible occurring of an event, deriving from her violation of a restraining norm, it is indeed difficult for her to entirely overcome such representation at the moment of her conduct. Finally, the distinction we are examining presents obvious problems relating to probative ascertainment. An equally dubious distinction, then, is that between dolo diretto and dolo eventuale. It is supposed to consist, not so much in the different attitude of the agent’s will21, as in the different degree of subjective predictability of the harmful event22, certainty or high probability on one side, probability or possibility on the other. The minority Italian case law distinguishes dolo diretto from dolo eventuale on the grounds of the fact that, while in the first case the event is foreseen as certain, in the second case it is foreseen as probable (or highly probable)23. Such a distinction creates obvious problems, both on the probative plane, and under the equitable profile. The agent, in fact, may even be wrong: she may foresee as certain a merely probable event. In particular, should the agent have foreseen as certain a scarcely probable event which, in actual fact, did not occur, she will answer for attempted crime, whereas if the agent had not erred in

19 Thus, e. g., Pagliaro 1993 (pp. 322 ff.); Eusebi 1993 (chap. III). This observation is sometimes shared also by those who adhere to a (re)definition of dolo eventuale identical or analogous to the one reported above. Thus for instance, Laurenzo Copello 1999 to make up for this difficulty proposes a redefinition (not of dolo eventual, but rather) of culpa consciente as “evaluación inadecuata de un riesgo”, “un caso de error de tipo vencible” (pp. 291–292). A different trend distinguishes the non-direct intention forms (as dolo eventuale) from the negligence on the grounds of the degree of probability ascribed by the agent to the possible realisation of the event. Ross 1979 (pp. 150 ff.) opines that the criterion actually utilised by judges to fix the limits of intention consists just in the probability ascribed by the agent to the events actually taking place. 20 Cfr. Eusebi 1993, pp. 82–83. For a criticism to the reconstruction of colpa cosciente illustrated above, cf. also Carrara 1907, in particular 70. 21 In both cases the agent is not aiming at the implementation of the harmful event, but rather, she restricts herself to foreseeing and accepting it. 22 Thus, for example, Prosdocini 1988, p. 105; Eusebi 1993, p. 52. 23 Cf. above, note 9. An analogous criterion is adopted by Spanish jurisprudence to distinguish between dolo de consecuencias necesarias and dolo eventual.

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her ascertainment, she would be exempt from punishment24. Such a consequence appears to be unfair: in particular, it seems to violate the principles of equality and proportionality of punishment. In order to counteract this inconvenience, part of jurisprudence25 has proposed considering dolo diretto to be present only when the two requisites of subjective certainty and of objective certainty jointly occur: that is to say, according to this line of thought, the agent should foresee as certain an objectively certain event. In this case, however, the ascertainment of the subjective element would conceptually override the ascertainment of the causality nexus. A further, and no less problematic, distinction is that between dolo diretto and dolo eventuale, and accepted by prevalent Italian case law, dolo diretto is supposed to occur when the event has been foreseen, not only as certain, but also as highly probable, while dolo eventuale is supposed to occur when it is foreseen only as “not highly probable”26, i. e. as probable or possible27. The problem is that the agent very often omits to draw up a table of probabilities before undertaking the act. Furthermore, on a conceptual plane, while the distinction between the two extreme limits (i. e. that of high probability and that of low probability) is, at least theoretically, quite clear, intermediate cases remain obscure. The risk is that of replacing the judge’s evaluation for the ascertainment of the degree of prediction of the event on the agent’s part: in this case, the ascertainment of the subjective element would be completely absorbed into the ascertainment of the causal nexus. Such theoretical and conceptual difficulties obviously have an effect on the probative plane, making it difficult to ascertain whether a subject acted with dolo diretto or with dolo eventuale. However, for Italian law such an ascertainment is doubly relevant. Indeed, on one side, par. 133 of the penal code equates the severity of punishment to the intensity of dolo, and dolo diretto is usually considered a more intense form with respect to dolo eventuale. On the other hand, the majority of case law deems that dolo diretto, unlike dolo eventuale, is not incompatible with attempted crime28. 24 This is because, for Italian case law, dolo eventuale, unlike dolo diretto, is incompatible with the figure of attempt. 25 Cf., e. g., Eusebi 1993, pp. 53–54. 26 Thus, Cass. Pen., sez. VI, sen. nr. 8745 dated 01.06.2000, in Riv. Pen. 2000, 1151. 27 An (isolated) opinion distinguishes ‘dolo eventuale’ from ‘dolo diretto’ on the grounds of the fact that in the first case the event is foreseen as ‘concretely possible’, while in the second case it is foreseen as ‘probable’ (cf. Cass. Pen., sez. I, sen. nr. 6358 dated 12.11.1997, in CED Cassazione, 1998). Unfortunately, the opinion in question omits to distinguish the concept of ‘concrete possibility’ from that of ‘probability’. 28 Cf., e. g., Cass. Pen., sez. I, sen. nr. 6358 dated 12.11.1997, in CED Cassazione, 1998; Cass. Pen., sez. VI, sen. nr. 6880 dated 15.04.1998, in Giust. Pen., 1999, II, 311.

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At the end of this short examination, it is opportune to stress how questions dealt with by Italian case law and jurisprudence may be quite regularly encountered in the juridical experience of most European countries. In particular, the problems concerning the identification of a unitary structure of dolo, the distinction between direct-intention forms and non-direct forms, and the fixing of the minimum limit of the intentional (dolosa) responsibility have been tackled, in almost analogous terms, in all civil law countries29. The situation in common law countries might, instead, seem different; it is, therefore, necessary to carry out a very brief examination of the notions of intention (and recklessness) as specified by English case law and jurisprudence. The subjective state called ‘dolo intenzionale’ corresponds to direct intention. There is a direct intention when the consequences are contemplated by the accused as an end that she set out to achieve, or as a means to her end, and constituted at least a part of her reasons for doing what she did. Oblique intention30 would, instead, seem to correspond to dolo diretto31. There is an oblique intention when the accused merely foresaw the harmful event as a certain and unwelcome consequence of her intention32. Therefore, as Williams33 has sustained, intention corresponds either to the desire34 for a consequence to derive from an act or from an omission, or to the awareness that such consequence is practically certain35. In some cases, however, common law judges have opined 29 This is not to sustain that the accepted solutions (i. e. the solutions accepted by prevalent case law and/or by majority literature) are identical: what is, instead, identical are the problems faced and the solutions put forward in order to solve them. This obviously derives from the common origin of our penal laws, as well as from the proliferation of comparative studies and from the increasingly frequent cultural exchanges between experts in penal matters. 30 As is well known, the distinction between direct and oblique intention dates back to Bentham 1789. 31 Although, as I have recalled above, prevalent Italian case law deems that to integrate dolo diretto it is sufficient to have foreseen the harmful event as highly probable. However, as we shall see, an analogous trend is affirming itself with respect to oblique intention. 32 As Lord Coleridge says in the famous Victorian case, R. vs. Desmond, Barret and Others, it is a murder “if a man did [an] act not with the purpose of taking life but with the knowledge or belief that life was likely to be sacrificed by it”. 33 Williams 1983, p. 123. 34 The explanation of the concept of intention in terms of desire has been an object of lively polemics. On this subject cf., e. g., Curzon 1984, p. 23; Williams, 1987, pp. 417 ff.; Buxton 1988; Duff 1990a. 35 According to Hart, direct and oblique intentions share an important feature: in both cases the accused “had control over and may be considered to have chosen the outcome, since he consciously opted for the course leading to the victim’s death. Whether he sought to achieve this as an end, or merely foresaw it as an unwelcome consequence of his intervention, is irrelevant at the stage of conviction where the question of control is crucial” (pp. 121–122). On relations between direct and oblique intention and, in particular, on the question whether oblique intention represents a spe-

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that an (oblique) intention (in particular the intention to kill) was present even in cases in which the accused had foreseen the consequences of her act not as certain, but rather, as highly probable. Thus, in the famous case Hyam vs. Director of Public Prosecution, the House of Lords deemed the accused to be responsible for murder – albeit with various, not univocally oriented opinions36 – considering sufficient to the end of intention the representation of the event as (highly) probable. In this way, however, it becomes difficult to distinguish between oblique intention and recklessness37. As to the latter notion, at least until the end of the 1970s it has been quite univocal and seems wholly to coincide with that of dolo eventuale38. Indeed, for common law recklessness three elements are required: (1) the foreseeing of risk; (2) a risk of some degree; and (3) the unreasonabless of the risk. However, the House of Lords in the Caldwell and Lawrence cases, following which an objective notion of recklessness was affirmed, upturned this notion. In these decisions a principle was enunciated according to which it is not necessary for the agent to have actually represented to herself the risk of the event: if such risk is ‘obvious’, there is recklessness even if the agent had not foreseen it. The so-called ‘Caldwell recklessness’ therefore corresponds both to dolo eventuale and to colpa grave (gross negligence)39. These very brief comparative notes show, I hope, how beyond the different legal notions40 even common law juridical experience finds itself tackling problems analogous to those faced in civil law countries. In particular, the broadening of the limits of oblique intention seems to bring about an (almost) perfect juxtaposition between ‘dolo’ (‘dole’, ‘Vorsatz’) and the Anglo-Saxon figure of intention. 3. The Ascertainment of Intention – Preliminary Remarks I will analyse only the ascertainment of direct intention with respect to a completed, committed crime where the offence (caused by an act) consists in cies of genus intention or, instead, an autonomous figure cf., e. g., Williams 1987, p. 418; Duff 1990b, pp. 74 ff. 36 Cf. Duff 1990b, pp. 15 ff. 37 On this subject cf. Capoddi 1992, pp. 635 ff.; Vinciguerra 1992, pp. 185 ff. The latter author observes how the tendency to recognise intention when the event had been foreseen (only) as highly probable is partly due to the influence of English civil jurisprudence and he quotes, on this subject, the famous case Lang vs. Lang. 38 On this subject cf. Cadoppi 1992, pp. 636 ff. 39 It does not, instead, correspond to colpa cosciente (so-called Caldwell lacuna): cf. Williams 1983, p. 107. 40 Furthermore, the diversity of juridical notions is not irrelevant, given that the existence of intention, either direct or oblique, determines conviction for murder, whereas recklessness determines conviction for the less serious offence of manslaughter.

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the production of a new state of affairs41. As we said, there is a direct intention when the consequences are contemplated by the accused as an end that she set out to achieve or as a means to her end and constituted at least a part of her reason for doing what she did. As observed by Hart42, in direct intention, the juridical meaning of ‘will’, ‘desire’, ‘intention’, etc., appears to be analogous to that of common usage: this may perhaps facilitate our research. By judicial ascertainment of intention we mean the ascertainment, carried out in the penal trial, according to the procedural and probative norms that regulate it, of a sentence like (x) ‘John, in time t, acted with the intention, the will, to bring about C’43. The procedural verification of the proposition expressed by (x) is traditionally dealt with as a factual question; however, the sentence in question is not exhausted by the mere description of a fact, albeit psychological: it furthermore contains a legal qualification of such a fact. ‘Intention’, ‘intentionally’, ‘maliciously’, and the corresponding terms used by other European legal systems are, indeed, qualifying terms: such terms are not restricted to describing a fact, but they also qualify it, they subsume it under the disposition of a norm44. The presence of qualifying terms also within the so-called fact premise is one of the reasons that have induced to doubt the possibility and opportunity of a sharp distinction between quaestio facti (fact F has occurred) and quaestio iuris (fact F is subsumable under norm N)45. Other scholars, instead, opine that such a distinction presents an undoubted usefulness, at least under the heuristic profile. From this perspective, it is mostly not denied that the distinction between factual questions and normative questions may be empirically doubtful: that is, in actual fact it neither mirrors nor describes what judges do and say. According to this line of thought, however, such a distinction is useful as a theoretical model. In particular, from a conceptual viewpoint, it is supposed to coincide with the distinction between assertive and prescriptive utterances46. In the theo-

41 Offences of conduct, offences of omission, and the figure of attempted offence indeed present specific problems. 42 Hart 1967, in Hart 1973, pp. 120 ff. 43 As many authors have observed, the concrete historical event does not usually enter into probative judgement and procedure: the latter will rather be based on a proposition or on a set of factual propositions. On the other hand, to say that ‘John committed C’ is (logically) equivalent to saying that the proposition ‘John committed C’ is true. On this subject, cf., e. g., Taruffo 1974, note 2; Andrés Ibáñez 1992; Gascón Abellán 1999, p. 53. 44 Cf., e. g., Gascón Abellán 1999, p. 74: “la calificación jurídica, aunque se apoye en un juicio empírico, forma más bien parte de un juicio normativo ulterior”. On this subject cf. also Ferrajoli 1989, pp. 103 ff.; Mazzarese 1986, pp. 81 ff.; Ferrer Beltrán 2001, pp. 78–79. 45 For a criticism of such distinction cf., e. g., Mazzarese 1996, in particular pp. 81 ff.

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retical model of legal syllogism, quaestio facti therefore concerns solutions to theoretical questions of the kind: ‘Is it true that x?’ The answers to such questions are assertive sentences: sentences presenting a (true or false) proposition as true. A necessary condition for the sentences relating to the existence of intention to be included among questions of fact47 is, therefore, for them to express propositions (true or false), for the terms used in them to have a precise factual reference such as to render possible their empirical verification. This, however, is doubtful. In particular, we may distinguish at least two forms of scepticism: an ontological scepticism and an epistemological scepticism. The former position denies the existence of ‘mental facts’: the relative sentences can either be translated into sentences referring to non-mental facts48 or are meaningless. Epistemological scepticism, instead, denies that (another’s) mental state can be known, hence that the propositions relating thereto are verifiable. We should add a methodological scepticism, which denies the validity of one or more of all methods used to verify propositions relating to so-called subjective elements. Therefore, even with respect to the judicial ascertainment of intention the three questions tackled by Taruffo49 on the judicial ascertainment of the truth of facts in general come up again: that is, whether such an ascertainment is theoretically possible, ideologically necessary, and practically possible. The first question (mainly) concerns conceptual, ontological, and epistemological problems; the third one concerns methodological problems50; while the second question involves evaluative questions of criminal politics. 46 Thus, e. g., Comanducci 1992, pp. 222 ff. Ferrer Beltrán (2001, pp. 78–79) then observes that the recurring in the minor premise of qualifying terms, i. e. of terms whose definition is authoritatively stipulated by norms of the legal system, is not a sufficient argument to sustain the constitutive or normative nature of the judicial enunciations relating to the facts (which would be tantamount to denying the distinction between questions of fact and questions of law). What should, instead, be ascertained is the strength of such enunciations, as “la pertenencia de una definición a un sistema determinado no implica que ésta tenga fuerza normativa”. It seems, however, that much depends also on whether such definition was actually formulated, and whether it was formulated by using terms with a precise empirical reference. 47 The importance of such a question is not merely theoretical: in many legal systems the possibility of attempting the last degree of judgement is restricted to normative questions. 48 This, as we shall see, is the position held by behaviourism. 49 Cf. Taruffo 1992, pp. 7 ff.; Taruffo 1993. 50 Conceptual, ontological, epistemological, and methodological problems are variously connected to one another. The (ontological) question on whether or not mental states exist is essentially dependent on what we understand by ‘mental states’. A sceptical position on the ontological plane, then, necessarily implies an epistemological scepticism: if mental states do not exist, then neither can they be ascertained. Epistemological scepticism, instead, although it does not necessarily imply any ontological scepticism, does necessarily determine a sceptical position on the methodological

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3.1. Theoretical Possibility: In the World To wonder whether the ascertainment of intention is theoretically possible corresponds to wondering whether it is theoretically possible to verify the truth of the sentence (x) ‘John, in time t, acted with the will, the intention, to bring about C’. This obviously depends on the meaning of such a sentence: it depends on whether or not such a sentence expresses an empirically verifiable proposition. The epistemic question, ‘Is it possible to ascertain that John wanted C?’ presupposes the precedent solution of the question, ‘What does to want C mean?’ Will (like desire and belief) is traditionally defined as a mental state. But what is, what does it mean to have, a mental state? This question, as is well known, has been engaging scholars who deal with Philosophy of Mind for centuries, and it is still far from finding a conclusive answer51. Simplifying52, we may single out at least the following trends. (1) Dualism53, according to which there are psychological facts, inner and private mental states, distinguished by their substance or properties from other physical phenomena54. Subjective characterisation of mental states determines, on the epistemological plane, an asymmetry between the way that each person knows of her inner mental phenomena and the way that others from outside know of them. The only way to get to know someone else’s mind would be, according to some, in reasoning by analogy. Since each of us knows, by direct experience, that certain circumstances cause certain mental states in her and that these, in their turn, are related to certain behaviours or to other physically observable effects, then, if such circumstances occur and/or such effects take plane: if mental states cannot be ascertained, then there is no valid method to ascertain them. Also methodological scepticism may determine sceptical positions on an epistemological plane: if still today there are no valid methods to ascertain the existence of another’s mental states, this would be a valid argument to sustain that such states cannot be ascertained, either now or ever. 51 The landscape of present-day Philosophy of Mind appears to be dominated by the trend that calls itself ‘materialism’. This label, however, covers heterogeneous and often contrasting positions and theories. On this subject cf. Bechtel 1988, Italian translation, pp. 157 ff. 52 This is an extreme simplification, for each of the trends considered presents various inner currents, often sustaining contrasting theories. 53 Descartes distinguishes two kinds of substances, physical and mental: the former ones are supposed to be characterised by the property of extension, the latter by that of thought. 54 There is a traditional distinction between two trends of dualism: substance dualism and property dualism. While the former dates back to Descartes and sustains that in the world there are two different types of substances, i. e. mental and physical, the latter sustains the weaker thesis according to which there are mental properties (not substances) and some objects are supposed to have such mental properties in addition to physical ones. Then there are several variants of property dualism, which differ in the way they configure the relation, the interaction, between physical and mental properties. On this subject cf., e. g., Bechtel 1988, It. trans. pp. 143 ff.

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place with respect to other individuals, reasoning by analogy we may ascribe to them the same mental states that we experienced ourselves in those same circumstances and with those same effects. Thus for example, as I know that breaking an arm brings about pain and that, if I feel pain in an arm, I will tend to hold or touch it, to avoid knocking against objects nearby and, if I do not succeed in this, to cry out or make faces, then, if I know that a friend of mine has broken an arm and I see her holding it, trying not to knock it and crying out if she does not succeed, I may conclude that she (too) is feeling pain in her arm55. However, this procedure does not lead to absolutely certain results: from this viewpoint it would be impossible to conclusively ascertain the truth of the proposition expressed by the sentence ‘John acted with the will, the intention, to bring about C’. (2) So-called behaviourism56, instead, is characterised by the thesis according to which the terms of mental vocabulary designate exclusively behaviours or inclinations towards types of behaviour57. According to behaviourism, when we ascribe an emotion, belief, or desire to an individual, we are not making a statement on her inner states, but rather, we are simply characterising her in terms of what she would do in given circumstances. Since speaking of mental states is tantamount to speaking of behavioural states or inclinations, then so-called inner, psychological states cannot in any way be considered causes of behaviour58. From an epistemological viewpoint, the behaviourist perspective ought to facilitate the verification of sentences relating to someone else’s beliefs, desires, or intentions. Thus, the proposition expressed by sentences such as (x) ‘John, in time t, acted with the will, the intention, to bring about C’ is true if, and only if, John in time t has manifested a certain behaviour or a certain incli55

On this subject cf., e. g., Ayer 1953. The origins of behaviourism are traditionally individuated in logical positivism and in Wittgenstein’s analysis on common language. One of the major representatives of this movement is Gilbert Ryle (cf., in particular, Ryle 1949). 57 The ties between behaviourism and dualism are twofold. On one hand, behaviourism originates as a reply, a reaction to the ontology of dualism (cf. Searle 1993, chap. I). On the other hand, behaviourism presents itself as a sort of continuation of dualism: for dualism it is not possible to know someone else’s mental states with certainty; but then we might even doubt the existence of such mental states and, in this case, describing someone else’s mental states would mean nothing else but describing someone else’s behaviour, whether actual or potential. If, however, describing someone else’s mental states means describing a type of behaviour, an inclination towards a behaviour, then why should the description of my own mental states consist in anything different? The simplest way to eliminate this asymmetry is that of denying it: denying that a mental state is anything more than a type of behaviour or the inclination towards certain behaviour. On this point, cf., e. g., Ayer 1953. 58 Thus, e. g., Malcolm 1984. It is not possible to say that a subject in certain given circumstances behaved in a certain way because he wanted to obtain a certain result: in fact, to want a certain result means to behave in a certain way (in that way) if certain circumstances (those circumstances) are present. 56

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nation towards a given behaviour. In this case the judicial ascertainment of intention would be in no way different from the ascertainment of other material procedural facts59. (3) So-called materialism represents the dominating trend today in Philosophy of Mind. This label, however, covers extremely heterogeneous theories. With extreme approximation, we may say that the various trends of materialism (or, at least, most of them) share the idea according to which so-called mental states are identified with physical, neuronal states. In particular, the so-called type identity theory sustains that all types of a particular mental state (e. g. pain) are identical to the instances of a correlated type of neural event (e. g. a certain set of neural discharges)60; starting from this assumption, the most extreme version of materialism (i. e. so-called eliminative materialism) proposes to eliminate mental terms from our vocabulary and to replace them with terms from neuroscience, referring to cerebral states61. The so-called token identity theory instead considers that, although every token of a mental state is – identifies with – the token of a physical event, it is however impossible to establish a constant relationship of identity between a given type of mental state and a type of neuronal phenomenon62. Furthermore, some scholars who adhere to the token identity theory sustain (in contrast with eliminative materialism) that our (use of) mental vocabulary and our (use of) physical vocabulary are governed by such different principles that this renders impossible the construction of a unitary theory: the use of such vocabularies would necessarily lead to alternative and incompatible descriptions of the same facts. Therefore, given the incompatibility of the two vocabularies and the lack of a constant relation between types of physical events and types of mental events, it should be possible to classify and recognise mental states regardless of their physical constitution: in particular, such states could be characterised and defined on the basis of their function. The philosophical pro59 With ‘procedural material facts’ I translate the expression ‘fatti processualmente rilevanti’ used by Taruffo: see Taruffo 1993, pp. 71 ff. 60 The various supporters of such trend then differ in the ways in which they interpret the relation of identity between mental states and cerebral states: on this subject cf., e. g., Smart 1959; Feigl 1960. 61 As Searle has observed also materialism can be characterised by a sort of dualism: in particular as a ‘conceptual dualism’. “This view consists in taking the dualistic concepts very seriously, that is, it consists in the view that in some important sense ‘physical’ implies ‘non-mental’ and ‘mental’ implies ‘non-physical’ ” (Searle 1993, p. 26). 62 Thus, Davidson sustains that there are no deterministic laws on the grounds of which mental events can be explained and foreseen; according to this author, the only way to interpret a third person’s behaviour in psychological terms is that of recurring to the principle of rationality (cf. Davidson 1970). In analogous terms, Putnam sustains that a given mental state may be brought about by different physical events (cf. Putnam 1978).

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gramme called functionalism has tried to develop the implications of such characterisation. We should, however, specify also that functionalism (often listed as a current of materialism) is a heterogeneous movement, one often including contrasting positions and theories. Furthermore, not all ‘functionalists’ adhere to the token identity theory (or to some variant of it). On the whole all currents of functionalism sustain that mental states can be defined by their causal relations: through inner interactions, between mental states, through external interactions, between mental states and behaviours63. From an epistemological viewpoint, functionalism considers indispensable the use of an ‘objective’ methodology consisting in assuming the so-called third-person point of view. Given that intentions, desires, and beliefs are always associated to some (neuronal) physical state and that they are characterised by their functions, for their causal effectiveness the only epistemological question we might reasonably ask ourselves is, ‘Under what conditions would we from outside attribute beliefs, desires, etc., to some other system?’ The functionalists’ answer is, ‘By observing their behaviour’64. Functionalism, like behaviourism, starts from the analysis of behaviour, but, unlike behaviourism, it does not stop at this analysis. According to functionalism, between mental states and behaviours there is not a relation of identity, but rather, one of cause and effect. Some functionalists admit how the ascertainment of mental states through the examination of behaviours (which make up their effect) is an often-fallible procedure. The procedure, consisting in going backward from the effects (i. e. the behaviours) to the supposed causes, the mental states, is a fallible procedure if we admit that an effect may be produced by more than one cause. The adhesion to the other two currents of materialism listed above seems, instead, to imply epistemological theories and methodologies different from functionalism. The supporters of type identity theory and of eliminative materialism, sustaining the identity between (types of) mental states and (types of) neuronal phenomena, should believe that the only (or the best) method to ascertain the existence of an intention, or of any other mental state, is that of verifying the existence of a given physical, neuronal process. In actual fact, some representatives of type identity theory sustained the full compatibility of this theory with the functionalist position: this is due no less to the variety of functionalism than to the heterogeneity of theses qualified as type identity theory65.

63 The various versions of functionalism, instead, are distinguished by the ways in which they individuate and specify such relations: on this point cf., e. g., Bechtel 1988, Italian translation, pp. 188 ff. 64 For a criticism cf. Searle 1993. Searle points out how the adoption of the thirdperson point of view makes it difficult to see “the difference between something really having a mind, such as a human being, and something behaving as if it had a mind, such as a computer” (Searle 1993, p. 16). 65 On this point cf., e. g., Bechtel 1988, It. trans. p. 224, note 1.

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The majority of trends examined above seem to agree on the fact that the sentences relating to someone else’s mental states express true or false propositions; they differ, instead, in the way of interpreting such sentences and, in particular, in the way of defining that which such sentences are about: that is, precisely, mental states. According to some (dualists), the propositions expressed by such sentences refer to non-physical mental phenomena; according to others (behaviourists), they refer to inclinations towards behaviour; for others (materialists, in a broad sense), to neuronal physical processes; for others yet (Strong AI), to computational states66. Depending on how reference to such sentences is interpreted, the truth conditions of the propositions they express vary and, consequently, so do the methods to verify and/or falsify them. On the epistemological plane, the majority of theories considered (with the exception of some variants of dualism), although interpreting in radically different ways the sentences relating to mental states (of one’s own or) of a third person, seem to consider theoretically possible the verification of the propositions expressed by such sentences, but, as acknowledged also by many scholars, none of the verification methods proposed appear to be infallible. This is also true with respect to behaviourism: even if we identify mental states with the inclination towards reacting in certain ways to external stimuli, it is always possible to ascribe to an individual a behavioural disposition that she, in fact, did not have. Behaviourism, indeed, proposes to identify supposed mental states with conditional sentences that indicate the inclination to act in the presence of certain stimuli. On one hand, however, for each mental state there is a corresponding, potentially endless list of conditional sentences67. On the other hand, every conditional sentence may be associated with a plurality of distinct mental states68. On the plane of ascertainment, this implies that any past behaviour can be explained by a variety of inclinations towards behaviour69. To conclude, we may observe how the reflections and themes analysed above had an extremely scarce influence in the field of penal law: if dogmatics was seldom interested in studies of Philosophy of Mind70, the case law has practi66

AI is often considered as a current of functionalism. Thus, my intention to kill John may be analysed in terms of a potentially endless list of conditional sentences. For instance, according to behaviourism, saying that ‘I intend to kill John’ means saying: ‘If I had a gun handy, I would shoot John’; ‘If I had the opportunity and if I were capable of it, I would tamper with his car brakes’; ‘If I could give him a kidney to save his life, I would not do so’; ‘If I knew a killer, I would pay him to kill him’; ‘If I knew that he was at home unable to move, I would set fire to his house’; and so forth. 68 Thus, the sentence ‘If I could give Jack one of my kidneys to save his life, I would not do so’ might express the meanings ‘I want to kill Jack’; ‘I am afraid of undergoing surgery’; ‘I think I have got only one kidney’; ‘I do not want to change my lifestyle’; ‘I believe that transplants are immoral’; etc. 69 On this point, cf. Armstrong 1968; Bechtel 1988, Italian translation, pp. 150 ff. 67

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cally ignored them. Thus, if we tried to characterise the attitude of Italian case law with respect to the problem of mental states and to their relation with behaviours, the only conclusion we might draw is that it seems (at least apparently) to refuse any form of behaviourism (and eliminative materialism). Legal decisions speak about mental elements and do not identify intention with the behaviours of the accused; rather, as we shall see, they qualify such behaviours as ‘indicia’71 from which to infer the existence of such intention. Theoretical Possibility: During Legal Procedure The studies of Philosophy of Mind dealt exclusively with the way in which the sentences about mental states are used (and interpreted) in everyday language: the theoretical impossibility to verify, during legal procedure, the truth of the sentences about the existence of intention might, then, be due to peculiarities of the legal speech, which distinguish it from common language. Relevant theories72 on this subject are those according to which the judicial utterances about quaestio facti are supposed to be, not descriptive, but rather, constitutive, as sustained by Kelsen73 or normative ones, as sustained by Oppenheim74. Such theories have been submitted to several criticisms, to which we integrally refer75. Suffice it here to observe how for both theories it is impossible to preach the truth of all the judicial sentences relating to the facts, and not only that of sentences about the existence of intention: this is supposedly because such sentences do not express propositions (either true or false). In actual fact, it seems that according to Kelsen (and perhaps also for Oppenheim) sentences such as (x) ‘John in time t acted with the intention, the will, to bring about C’ are neither true nor false only if they appear in the text of a legal decision. That is to say, such theories do not, in themselves, seem to exclude either the theoreti70 For example, Eusebi, who expressly refers to functionalism, represents an exception: cf. Eusebi 1993, pp. 122 ff. 71 As observed by Taruffo (1992, pp. 451 ff.), the term ‘indicia’ (‘indizio’) is used in at least three different meanings: (1) as a synonym of presumption; (2) to indicate elements of proof lacking the requisites required by law for the employment of simple presumptions; and (3) as a synonym of ‘well-known fact’ of a circumstance or behaviour from which conclusions may be drawn on the fact to be proven. In this paper, such terms will be used with meaning number 3. 72 A different position was, instead, sustained by Hart 1948 according to whom to say that an action x was voluntary on the part of an agent A is not to describe the act x as caused in a certain way but to ascribe it to A, to hold A responsible for it. Geach 1960 and Pitcher 1960 contested this thesis with criticisms that were then accepted by Hart himself (cf. Hart 1968, preface). 73 Cf. Kelsen 1945, pp. 135 ff.; Kelsen 1960, pp. 242 ff. 74 Cf. Oppenheim 1995, pp. 290 ff. 75 Cf., e. g., Bulygin 1995; Ferrer Beltrán 2001.

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cal possibility to ascertain during trial the truth of the relevant facts or the practical possibility of such ascertainment. Sentences such as (x) are either true or false, and they remain so also within the trial when they are asserted by a prosecutor or denied by defence; but once such ascertainment has been carried out and consecrated within a legal decision, it becomes incontrovertible: any other opinion is legally excluded. In other words, for such theories what is neither true nor false is the judicial sentence, the utterance expressed in the decision, which concludes such ascertainment, thus conclusively ascribing truth or falsehood to factual sentences that are procedurally controversial. There is another judicial position, which excludes the theoretical possibility of ascertaining the truth of the sole sentences relating to the existence of intention. This is the well-known thesis sustained by the Spanish Supreme Court according to which the ascertainment of psychological facts consists, not in the ascertainment of a fact, but rather, in a judgement of value76. It is unclear whether behind this affirmation there is a precise ontological, conceptual, or epistemological conception of so-called subjective states. That is to say, it is unclear whether Spanish jurisprudence adheres to some form of ontological scepticism (for instance considering that so-called subjective elements do not exist), or whether, in the wake of dualistic theories, it considers mental states not to be ‘facts’77, or whether instead it expresses a sceptical position only on an epistemological plane78. Several authors have observed how the configuration of the proof of the subjective element in terms of a judgement of value is more than anything an answer to the need to allow the claim to the Spanish Supreme Court which, otherwise, would be forbidden by par. 849.II of Spanish procedural law79. Spanish jurisprudence has recently started following a different trend. In decision nr 1657/2001 (ponente, Andrés Ibáñez)80, the Supreme Court indeed affirmed that the proof of the intentional element does not consist in a judgement of value, but rather, in a judgement of fact81. 76 Cf., e. g., STS 572/1996 of 16 September and STS 823/1995 of 26 June, both quoted in Gascón Abellán 1999, p. 77. 77 In this sense, those opinions according to which psychological facts ‘no son estrictamente verdaderos hechos, pues no se tracta de datos fàcticos aprehensibles en la immediacion procesal del juicio por los sentidos de los jueces’ (cf., e. g., SSTS 993/ 1993 of 26 April, quoted in Gascón Abellán 1999, p. 77). 78 Thus, Andrés Ibáñez (1992, note 41) observes how intention (e. g. to kill) is qualified as a ‘fact’ when there is material proof, as a ‘judgement of value’ when there is only indirect proof. 79 As was noted by Andrés Ibáñez (1992, p. 268), this aim “impone un precio objetivamente intolerable desde el punto de vista epistemológico, porque esa concepción niega o cuestiona implícitamente, o, cuando menos siembra una seria confusión, acerca de la existencia como tal de una dimensión central de la conducta humana; y la posibilidad de acceder a un conocimiento racional de la misma”. 80 I wish to thank Ferrer Beltrán for acquainting me with such opinion, as well as with Andrés Ibáñez’s writings.

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3.2. Ideological Opportunity The ideological opportunity to ascertain the existence of intention is certainly connected with the more general (ideological) need to found every decision on the previous procedural ascertainment of the truth of facts. Thus, Taruffo82, with respect to civil trial, observes how the ideological inopportuneness of ascertaining the truth of facts is related to a concept of trial as an instrument to solve conflicts between the parties in question. To this concept Taruffo objects that, if one will not consider valid just any solution of the conflict, but will, instead, consider as indispensable some criterion of justice, then the truthful ascertainment of facts becomes a necessary condition for any ‘right’ solution. With respect to penal trial, if legal theories denying the ideological opportunity to found decisions (especially conviction) on the verification of the truth of facts are seldom encountered83, it is, instead, not at all unusual to encounter legal literatures sustaining the ideological inopportuneness of ascertaining only the subjective element (intention, recklessness, or negligence). The ascertainment of intention is, in fact, ideologically necessary only if, and insofar as, the principle of mens rea is considered ideologically opportune. If, instead, a model of strict liability is chosen, the ascertainment of intention becomes superfluous (and inopportune)84. The choice between the model of subjective guilty responsibility and that of strict liability appears to be related to, and conditioned by, a great number of ideological and theoretical options, such as, for example, the function ascribed to penal law and to the assignment of penalty, or the value ascribed to freedom and to the individual85. Here we may restrict our observations to the fact that, de iure condito, the whole of European legal systems has accepted, at least for most offences, the principle of mens rea; whereas, de iure condendo, the opinions in favour of extending the strict liability model, far from having disappeared, have acquired new strength (and new arguments), especially following growing technological development86. The ideological dispute is still open. 81

Such trend, however, does not yet appear to be consolidated: cf. TS 2164/2001. Cf. Taruffo 1992, pp. 16 ff. e Taruffo 1993. On this subject cf. also Gascón Abellán 2001, pp. 98 ff. 83 On this subject cf. also Ferrajoli 1989, pp. 43 ff. 84 Ferrajoli (1989, pp. 496 ff.) notes how the model of objective responsibility has been sustained both by those objectivistic and positivistic theories which, uniting a deterministic premise to the need for defence and social prevention, have gone so far as to refuse the concept of subjective guilt as scientifically and axiologically inconsistent; and by the opposite subjectivist theories, which, merging the idea of free will with a normative conception of guilt (as consciousness of illicitness), ended up by referring mens rea no longer to the offence, but rather, to the offender, elaborating figures such as author’s fault or fault through conduct of life. 85 On the relations between the ‘psychological’ conception of dolo and legal literatures on penalty cf., e. g., Ragués i Vallès, pp. 207 ff. 82

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3.3. Practical Possibility About the practical possibility we may observe how the impossibility to conclusively ascertain the truth of factual sentences within the trial seems to be mainly due to two factors. Firstly, the judge has at her disposal a limited period of time to ascertain the facts, to answer the (theoretical) question on whether such facts did or did not occur. As noted by Celano, “theoretical inquiry aims at truth, and truth is eternal, but any given answer to a theoretical question must be taken to be, on a fallibilistic account of knowledge, simply a hypothesis, whose full confirmation would require unlimited experience”. “Theoretical questions are, in principle, always open questions”87. Furthermore the judge, at least in most legal systems, is also subjected to limitations deriving from procedural norms, which limitations can have a significant effect on the means and ways of ascertaining truth88. Secondly, it has been opined that in trial the proof of facts89 is nearly always related to indicia: legal proof always has as its object the verification of an assertion on a past fact, which the judge cannot acknowledge or verify directly90. The category of indicia-related proof includes, if we follow this line of thought, also so-called historical proof – witnesses and documents – at least as pertains to the passage from the fact of declaration to the truth of the declared fact91. Actually, this position, at least if we understand it in extreme terms, is 86 Technological development has, indeed, brought about the advent of new activities, which, although socially useful, have multiplied risk factors: hence the need to charge their human costs to those subjects who draw the greatest economic benefits from them. The same phenomenon seems to be at the basis of the increase in the figures of dangerous offences. 87 Celano 1995, p. 149. 88 Thus, Taruffo (1974, p. 96) notes how the impossibility of reaching absolute truth in the probative field is given, as well as by the more general impossibility at an empirical level and at that of common sense, by other well-known reasons, relating to the intrinsic limitedness of the materials for knowledge at the judge’s disposal, as well as by internal and external restrictions met by the procedures the judge might use to acquire knowledge. 89 The term ‘proof ’ is, as is well known, extremely ambiguous: in this context it seems to refer mainly to the probative procedure. In this sense, to say that probative procedure is indicia-related means saying that the judge cannot verify through direct observation the truth of factual sentences. On the various meanings of proof (‘prova’), cf., e. g., Taruffo 1992, pp. 421 ff.; Gascòn Abellàn 1999, pp. 84 ff.; Ferrer Beltrán 2001, pp. 81 ff. 90 On this point cf. Cordero 1987, pp. 960 ff.; Ubertis 1979, pp. 112 ff.; Ferrua 1993, pp. 216 ff. 91 Other authors, although agreeing on the impossibility to conclusively ascertain the truth (at least of most) of the sentences of the so-called premise in fact, have instead re-proposed the distinction between proof (prova, prueba) and ‘lead’ (indizio, indicio), though understanding it in different ways. Thus, e. g., Ferrajoli (pp. 108 ff.)

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not acceptable92. Especially in civil trial there is a great number of pieces of proof having as their object so-called principal facts which are present and based on direct observation by the judge or an expert93. In spite of the acquired awareness of the impossibility to conclusively ascertain the truth of material procedural facts, or of most of them, we should however point out how the ascertainment of intention presents greater and specific problems94. One of the peculiarities of the judicial ascertainment of intention consists in the fact that the sole material proof95 is represented by the declaration of the accused: that is, confession96. However, jurisprudence does not ascribe to such declaration a decisive probative value, but rather, it demands that it should be confirmed by other elements97. Apart from the rare cases of confession, the legal verification of intention takes place through indirect proof by means of a presumptive probative procedure98. The presumptive procedure condistinguishes between proof and lead (indizio), meaning by ‘proof ’ the probative fact (the means of proof) experienced in the present, from which the offence or another fact of the past is inferred; and by ‘lead’ the proven fact of the past from which the offence or another fact which has, in its turn, a value of lead, may be inferred. Gascón Abellán (1999, pp. 92 ff.; 2001, pp. 101 ff.) distinguishes, instead, between direct proof (probative procedure) based on the judge’s direct observation, deductive proof, and inductive or indicia-related proof. Gianformaggio (1988, pp. 475 ff.) distinguishes between proof (prova) and indicia according to whether the sentence on the known fact (the means of proof) constitutes the minor premise of a deductive argument having as its major premise a scientific law, or whether instead it appears as a premise to an abductive argument. For an articulated typology of the kinds of proof, cf. Taruffo 1992, chap. VI. 92 I wish to thank Ferrer Beltrán for this observation. 93 Let us think, for instance, of proof having as its object the nullity of a written negotiation owing to the lack of an essential requisite, or to the existence of a danger of ruin of a building, or yet again, to proof concerning the existence and quantification of a damage to things and/or persons. 94 Let us think, for instance, of proof having as its object the nullity of a written negotiation owing to the lack of an essential requisite, or to the existence of a danger of ruin of a building, or yet again, to proof concerning the existence and quantification of a damage to things and/or persons. 95 What is meant by ‘material proof ’ is proof having as its object the juridically relevant fact, i. e. proof directly concerning the fact to be proven. Taruffo (1992, pp. 426 ff.) speaks, on this subject, of ‘prova diretta’. 96 Thus, Taruffo (1992, pp. 140–141) notes how witnessing cannot act as material proof of intention: a witness’s declaration, according to whom John declared that he wanted C, if and insofar as judged believable, proves the truth, not of the proposition ‘John wanted C’, but rather, of the proposition ‘John declared that he wanted C’. 97 On this subject cf., e. g., Ragués i Vallès 1999, pp. 232 ff. 98 So the doctrinal debate on the ascertainment of intention has always moved between the two extremes of probatio diabolica and of presumptions of intention (Cf., e. g., Battaglini 1944): on one side, in fact, there is the need to escape any abstract presumption and to concretely ascertain the existence of the intentional element; on the other side, there is the risk that such ascertainment will never be reached, so that the offence will remain unpunished.

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sists in “an inference formulated by the judge, who reaches a conclusion about the fact to be proven (the “unknown fact”) starting from another fact already known or proven (the “known fact”), which serves as a premise to a reasoning, usually founded on maxims of experience”99. 4. From Facts to Intention Italian case law has often affirmed that the existence of intention should be inferred on the grounds of “elements of an objective nature, inferable from the action’s modalities, being symptomatic – on the grounds of an evaluation based on the common rules of experience – of its existence”100. If we tried to reconstrue, following a syllogistic methodology, the legal reasons relating to the ascertainment of intention we might obtain the following argumentative scheme101: (a) Maxim of experience. Ex. ‘All those who do A, A1, A2, etc., in circumstances B, want to bring about event C’ (b) Known fact102. Ex. ‘John in time t, did A, A1, A2, etc., in circumstances B’ (c) Conclusion. Ex. ‘John, in time t, acted with the will, the intention, to bring about C’ ‘A’, ‘A1’, ‘A2’, etc., indicate not only the action which caused the event, but rather, a whole set of actions and/or omissions variously characterised and described on the grounds of the modalities of their execution (e. g. ‘Shooting with a nine-bore gun’). ‘C’ stands for the name of the event – in the naturalistic sense – in which the offence consists (e. g. ‘death’)103; ‘B’ indicates, instead, the set of circumstances before, during, and after the event’s occurring. 99 Taruffo 1992, p. 444; on presumption cf. also: Taruffo 1974; Gascón Abellán 1999, p. 151. 100 Cass. Pen., sez. I, 28.04.1989, quoted in Pisa 1995, p. 9. 101 Thus, e. g., Ragués i Vallès 1999, pp. 237 ff. 102 As noted by Taruffo (1974, note 2), the general concept of ‘fact’ is ambiguous and undetermined, both because it indifferently includes simple circumstances and complex situations, and because it does not take into account the possibility that a same circumstance might be interpreted and described in a plurality of different ways. In the present context, by ‘known fact’ we mean the proposition expressed by a sentence about facts which, in the trial, are assumed as proven. 103 I remind the reader that the sentence ‘John, in time t, acted with the will, the intention, to bring about C’ has been interpreted as relating to the existence of intention with respect to a completed, committed crime where the offence (caused by an act) consists in the production of a new state of affairs.

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In fact, this simple syllogism does not at all exhaust the reconstruction of the ascertainment of intention. Firstly, it is not at all sufficient to ascertain that John committed A, A1, A2, etc., but rather, it has to be verified that he actually wanted to do A, A1, A2, etc. In other words, it is not true that all those who carry out a given action want a given consequence, unless we presuppose (at least) that they wanted to carry out the action in question. The premises made should, therefore, be integrated as follows: (a) ‘All those who do and wish to do A, A1, A2, etc., in circumstances B, want to bring about the event C’; (b) ‘John in time t, did and wanted to do A, A1, A2, etc., in circumstances B’. The will refers not only to the carrying out of the action causing the event but also to the carrying out of all actions and omissions as described in the major premise. In other words, what comes to the fore is not only the wilfulness of conduct104 and the lack of force majeure but also the absence of error. It cannot be said that John wanted to ‘shoot’ with a nine-bore gun if John was convinced that such weapon was unloaded or on the safety-catch; or, in other words, not all those who pull the trigger of a gun want to actually shoot. It emerges, furthermore, how the concrete description of the actions and/or omissions, contained within the premises, has a decisive value to assess the credibility of the maxim of experience and of the correctness of the syllogism. Also, the wilfulness of acts and/or omissions as described in the major premise, as well as the absence of error or force majeure, will have to be ascertained during trial. Secondly, the ascertainment of will seems to presuppose, nearly always, the ascertainment of the existence of knowledge of certain facts on the agent’s part. Thus it would seem necessary to ascertain that the accused knew the causal efficacy of her actions, in those circumstances, with respect to the event’s occurring. Also, the knowledge of the causal efficacy of an action in certain circumstances is mostly presumed on the grounds of maxims of experience105. Such knowledge, however, often presupposes that the agent know the circumstances indicated by letter B: the circumstances before, during, and after the event’s occurring. Thus, for example, to know that throwing someone into the sea is an action causally apt to bring about her death, it is necessary to know that the victim cannot swim. The proof of such knowledge is an integrating

104 What Italian jurists call ‘suitas’. On this subject cf. Hart 1960, in Hart 1973, pp. 90 ff. 105 Thus, in English common law, a rule of experience constantly applied on the subject of mens rea is that according to which who acts is usually able to predict the normal consequences of her conduct. English case law (especially in the case Director of Public Prosecution vs. Smith), however, came to consider such principle as a qualified presumption, with the consequence that it was the accused who had to prove that she did not have in mind the natural or probable consequences of her acts. On this subject cf., e. g., Vinciguerra 1992, pp. 182 ff.

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part of the ascertainment of intention, and it is far from easy106: it will be mostly inferred by indicia, through a presumptive procedure identical to that employed to prove the existence of will. In particular, also in this case the major premise will mostly consist in a maxim of experience107. The question of the proof of knowledge, then, presents a delicate problem. According to the traditional notion of ‘knowledge’, a person may be said to know q (e. g. the causal efficacy of an action A with respect to an event C) only if three conditions are present: (1) for the subject to believe that q; (2) for such belief to be justified; and (3) for q to be true108. Let us suppose q to be true. The proof that the subject knew circumstances B tends to justify her belief that q (i. e. her belief about the causal efficacy of the action A with respect to the event C); or the knowledge of B justifies the belief that q, and renders probable the truth of (2). However, for the accused to be convicted, it is not at all necessary to prove that her belief that q is justified. The legal notion of ‘knowledge’ requires only that q be true and that the agent believe that q. If those two conditions are proved, the agent has to be condemned. Let us suppose, for example, that the agent throws the victim into the sea believing this to cause her death not because the victim cannot swim, but rather, following a magic spell: in this case the accused will be convicted. It will not suffice for defence to prove that the accused’s belief was unjustified; it will, instead, have to prove that the accused did not have such belief and had good109 reasons not to have it: it will have to be proven, not that the belief that q was unjustified, but rather, that the belief non-q was justified. In particular, setting aside considerations on sufficient discretion and intelligence, the defence will not be able to claim that the accused knew that the victim could not swim, but thought that she would die through a different cause (e. g. because of a magic spell); it will, instead, have to prove that the accused did not believe that q, but in order to do so, she will have to prove that the accused had good reasons not to believe that q (e. g. because she did not know that the victim could not swim). Also as pertains to circumstances B, then, it does not appear to be at all necessary for a belief in them to be justified. On one hand, the accused might believe B (e. g. that the victim cannot swim) without any reason and, in this case, she should be convicted. On the other hand, the accused, though having justified reasons to believe B, might instead believe non-B: that is, she might believe that the victim lied to her about her swimming skills. 106 107

On this subject cf., e. g., Ragués i Vallès 1999. We should not, indeed, forget that also knowledge, like will, is a psychological

fact. 108 Cf., for instance, Quinto 1967. Contra cf., e. g., Gettier 1963. In this paper Gettier’s objections to the traditional notion of ‘knowledge’ will not be considered. 109 Such reasons will have to be good, i. e. convincing, as bad reasons are unlikely to persuade the judge, for they are seldom considered credible.

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The problem is that a non- (rationally) justified belief is rather difficult to prove: the proof will, instead, concern the existence of good reasons to believe, or not. Such reasons, in themselves irrelevant, are decisive on the probative plane: the only way to prove the existence of a (past) belief seems to be that of proving the existence of reasons in favour of such belief. In short, the presumptive procedures employed in trial tend to prove the existence of justifications in favour of a given belief: that is to say, they tend to prove that there were reasons such as to justify the accused’s belief under circumstances B, and that such (justified) belief, in its turn, justified the belief that q (i. e. the belief about the causal efficacy of action A with respect to event C). Strictly speaking, however, the existence of a justified belief is irrelevant with respect to intention: once proven that q is true, the only proof necessary is that of the fact that the agent believed that q. The truth of the proposition ‘there were justified reasons for the accused to believe that q’ is logically independent from the truth of the proposition ‘the accused believed that q’. Procedural proof allows verification of the truth of the former proposition, not of the latter. The truth of the second proposition may be logically deduced only through a maxim of experience such as: ‘If there were justified reasons for the accused to believe that q, then the accused believed that q’. The validity of such a maxim is objectionable: in particular it is only valid if the accused behaved in a rational manner, foresaw the consequences of her acts, assessed the circumstances known to her, did not act in a reckless manner, etc. In fact, this brings about a sort of inversion of the burden of proof: it will be the accused who will have to prove that her acts were brought about by recklessness, negligence, or imprudence; or, in short, that she acted in a negligent, not in a fraudulent, manner. The point is that maxims of experience always incorporate models of rationality: such maxims are valid only if the agent behaves in an absolutely rational way and has normal psychic skills. On this subject we should, however, point out that Italian case law considers it indispensable to ascertain the existence of intention also with respect to offences carried out by subjects who cannot be charged because they suffer from mental illness or because they are minors. The necessity of such ascertainment is due to strictly juridical reasons: par. 203 of the Penal Code, to ascertain the social dangerousness of non-chargeable subjects, refers to the circumstances indicated in par. 133 p. c., among which are included ‘the intensity of intention’ and ‘the degree of negligence’. Such ascertainment presents a great number of problems: all maxims of experience (and not only those relating to causal efficacy) presuppose the agent’s sound-mindedness110. 110 Thus, for example, the maxim according to which ‘All those who shoot with a rifle they think to be loaded, aiming from a close distance at a man’s head, want to bring about his death’, is not applicable to a mentally insane person, who might be

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Finally, the syllogism quoted above does not mention any of the possible motives for the offence. Considerations on such motives are mostly used in legal reason as arguments, as further presumptions, in favour of the reached conclusion. Problems arise if the motive and the ascertainment of intention do not coincide: that is to say, when the existence of intention is considered highly probable, but no ‘valid’ motive has been singled out; or when there is a valid motive, but the existence of intention has not been ascertained as the most likely hypothesis. For example, the lack of a motive that might be considered valid by common social conscience might either vitiate the truth, i. e. the degree of probability, of the sentence about the existence of intention or lead to the application of an aggravating circumstance. 4.1. Maxims of Experience Maxims of experience111 have always been a controversial topic. Whereas in the past legal literature tended to criticise the use of maxims which were not founded upon scientific propositions or upon universal or, at the very least, probabilistic laws (as long as they had been scientifically tested), today the use of ‘rules of experience’, which have neither been scientifically formulated nor scientifically experimented, is taken for granted. The maxims used in the presumptive procedure for the ascertainment of intention certainly belong to this category. More precisely, the maxims of experience used in such procedure are propositions connecting certain facts, certain acts and circumstances, to the existence of the intentional element: that is to say, they are propositions that affirm that such facts are symptomatic of the existence of intention. It is by now taken for granted that maxims of experience only allow conclusions in probabilistic terms: id quod plurumque accidit non semper accidit112. Therefore, strictly speaking, the proposition expressed by such maxims does not state that certain facts are always related to the existence of intention, but simply that certain facts are mostly, in most cases, related to the existence of such an element113. convinced either that she is aiming at a ghost’s head, or that the rifle will not shoot because of a divine intervention, or yet again, that the man she is aiming at is immortal. 111 On the history and evolution of the concept of ‘maxims of experience’ and on the difference between these and so-called well-known facts cf. Nobili 1969. 112 Cf. Taruffo 1974, p. 89: maxims of experience install a relationship between fact categories (to which we suppose to belong, respectively, the known fact and the unknown fact) without however indicating such relationship as being necessarily present in each single hypothesis, restricting themselves to affirming their existence in most known cases. 113 In a different perspective Gianformaggio (1988, p. 483) notes how a syllogism having as its major premise a maxim of experience is nothing but an abduction in whose major premise the antecedent and the consequent have been inverted. This observation is applicable also to the maxims of experience used in the ascertainment of

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The question then is that of assessing the degree of probability expressed by such maxims, of distinguishing between ‘true’ maxims and ‘false’ maxims114, and, above all, of singling out the possible exceptions in the presence of which the connection relationship between known fact and unknown fact, although existing in most cases, is actually not present115. With respect to the credibility (i. e. to the degree of probability) of the maxims used, it has often been pointed out how the key point of presumptive reasoning resides in the wideness of the range of observations that allow the formulation of the inferential rule116. In other words, a maxim of experience is supposed to be all the more credible the higher the number of cases in which the connection relationship affirmed by it has been observed to be present. The problem is that such a procedure of observation and empirical falsification of the connection between known fact and unknown fact is not possible in the case of maxims used during the ascertainment of intention. Judges have never observed that in a high number of cases the explosion of numerous shots fired towards someone is connected with the will to kill; but rather, they have declared this in a high number of cases117. And they have never observed it, but merely declared it, because psychological facts do not lend themselves to direct empirical observation. When elaborating the maxim of experience, one cannot avoid (and this is true both in the trial procedure and in everyday life) recurring to a sort of mental experiment, putting oneself in the agent’s place118, basing oneself as much on one’s own experiences as on the opinions about the common way of feeling and acting, on widespread cultural and behavioural clichés119. The maxim of experience acting as a premise to the syllogism presented above is, therefore, in its turn the fruit of an inference, of a presumption. intention only if, and insofar as, one believes that mental states, the will, desire, etc., are the cause of external behaviours. Only in this case may we say that the maxim ‘All those who do and want to do A, etc., in circumstances B, which are known to them, want to bring about C’ is equivalent to ‘If someone wants C, in circumstances B, which are known to her, then she will do A’. 114 A maxim of experience is false when it affirms that in most cases there is a connection between known fact and unknown fact, which in most cases is actually not present. 115 This task will typically pertain to the defence. 116 Thus, for instance, Fassone 1996, p. 215. 117 An analogous observation is to be found in Fassone (1994, p. 327) on all maxims of experience used in legal abduction. According to this author, the inferential rule applied by jurisprudence does not originate from observation which is, by definition, lacking, but rather, by thought economy, which tends to consider true, among the causal antecedents of a fact, that which is considered most probable. 118 On this subject cf., e. g., Raguès y Vallès, pp. 251 ff. 119 As pointed out by González Lagier 2001, the transfondo, i. e. the set of beliefs, categories, presuppositions typical of a given culture, plays a fundamental role in the interpretation of (external) facts as being intentional or not.

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As Ferrua points out, such inferences have very little that is scientific about them. Hence the need, expressed from several sides, for the hypothesis, i. e. the conclusion obtained by using the maxims of experience, to be confirmed also by other data120. That is to say, it would be necessary for the conclusion that ‘John, in time t, acted with the will, the intention, to bring about C’ may be considered probable on the grounds of several syllogisms (having as their major premise various maxims of experience, all credible). Always concerning the ascertainment of credibility of the maxims of experience, legal literature appears to be divided with respect to the tendency of jurisprudence to elaborate typical schemes of indicia, to build legal typologies of facts symptomatic of intention121. According to some, such tendency is commendable in that, as well as assuring greater impartiality, it guarantees the general character of the maxims employed. Others, instead, fear that such an expedient might conceal a return to a system of presumptions of intention and, above all, that it does not allow an adequate consideration of the concrete case’s peculiarities122. What appears to be essential is for such maxims to be formulated rigorously, to exhaustively describe so-called ‘symptomatic facts’ in precise terms, not in an incomplete nor in a generic manner. The more rigorous the terms in which the major premise is formulated, the less exceptions it will admit. For the syllogism not to be vitiated, it is then necessary for the minor premise to be formulated with an identical rigour: it is necessary for the description of the accused’s actions and/or omissions and the circumstances of action to be described in precise terms, and for such descriptions to coincide exactly with those contained within the major premise. For example, the maxim ‘In most cases, all those who pull the trigger of a nine-bore gun, pointing towards a man’s head, want his death’ is formulated in a scarcely rigorous manner. The description ‘to pull the trigger of a nine-bore gun, pointing towards a man’s head’ is generic. That is, such description is compatible with ‘to accidentally pull the trigger of a nine-bore gun’; however, it is not at all true that, in most cases, those who accidentally pull the trigger of a gun, pointing towards a man, want his death123. Also the maxim ‘All those who wilfully pull the trigger of a nine-bore 120

Cf., e. g., Ferrua 1994; Fassone 1994. On this controversy, which is not new in Italy, cf. Nobili 1969, pp. 161 ff. 122 Cf., e. g., Laurenzo Copello 1999 pp. 136 ff. 123 Certainly, wilfulness is a subjective element and it, too, will have to be ascertained, inferred by the action modalities, through a presumptive procedure which is also re-construable in a syllogistic form. The major premise of such syllogism will probably include a maxim of experience relating the existence of a voluntary act to certain symptomatic facts. Such symptomatic facts will probably include the agent’s beliefs and knowledge. Also such beliefs and knowledge represent subjective elements, psychological facts which will have to be proven. 121

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gun, aiming at a man’s head, want his death’ is not rigorously formulated. In this case the description (‘to wilfully pull the trigger of a nine-bore gun, aiming at a man’s head’) is not generic, but rather, it is incomplete. ‘To wilfully pull the trigger of a nine-bore gun, aiming at a man’s head’ is a fact scarcely symptomatic of the will to cause a man’s death, unless it is presupposing, at least, that the agent knew that the weapon was not on the safety-catch. 4.2. The Known Fact In the syllogistic scheme proposed above the known fact consists in the proposition expressed by a sentence about the accused’s acts and the circumstances of action, which during trial are assumed to have been proven. The truth of such a proposition might not be controversial. In most cases, however, it will have been an object of proof during trial. The fact that the individual was in that place, committed those actions (or omissions), following those modalities and in those circumstances, will all have been an object of proof. In particular, not only facts will be controversial, but also the descriptions of such facts: it will be controversial, not only that John pulled the trigger, but also whether he pulled it while stumbling or while he was cleaning the gun or watching television, etc. Furthermore, as we have seen, in the proof of direct intention, the minor premise will necessarily contain also a reference to the wilfulness of the action (which caused the event), to the knowledge, rectius belief, of the existence of causal nexus, and of previous, concomitant and subsequent circumstances. Also such subjective states will have to be proven through presumptive procedures, which present the same problems analysed above. Indeed, the proof of intention, far from being re-construable in the form of one single syllogism, presents itself instead as a chain of syllogisms, variously connected to one another. 4.3. What Certainty? The major premise expresses a proposition in probabilistic terms, which, however, is only true if we presuppose that the agent is sound of mind124. The minor premise, in its turn, expresses a proposition which is only probably true: that is, a proposition which, in the light of the knowledge material acquired during trial procedure, appears to be highly probable and, in any case, more probable than the propositions expressing alternative hypotheses. Such 124 From a different perspective, given that sound-of-mind individuals usually make up the majority of the population, mental insanity might be configured as an exception to the maxim quoted above; the problem is that, as I have already recalled, the Italian case law does not share such construction.

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premise, in the ascertainment of direct intention, also contains a reference to subjective states (beliefs and knowledge) which will, in their turn, have to be proven. If we were to re-construe the ascertainment of direct intention as a chain of syllogisms, we should conclude that none of the links of such chain is solid: no proposition has been verified as conclusively true. In the best hypothesis, the sole certainty is that in most cases an individual in those conditions would want such an event to be caused. Furthermore, the use of the maxims of experience determines, in actual fact, a sort of inversion of the burden of proof: it will pertain to the defence to prove that what occurs in most cases in that specific case doesn’t occur. To conclude, the main problems about the proof of intention consist in elaborating a unitary definition of intention sufficiently precise and rationally justified to allow its distinction from other subjective states. The greater questions, then, arise in the epistemological and methodological fields. The ascertainment of the subjective elements always presents a greater degree of uncertainty with respect to other material procedural facts. This is due to the nature of mental states: so-called subjective elements are not phenomena, external facts which can be experienced through the senses; the only material proof available is confession which, in itself, is not very credible. While it is generally possible to definitely falsify propositions about the occurring of an external fact (although, in single cases, it could not be possible), it is never possible, even in a general manner, to definitely falsify propositions about the existence of intention (or of other mental states). Personally, and here I am speaking in a prescriptive sense, I think that it is nevertheless preferable to prove the high probability of the existence of intention rather than wholly and a priori renouncing such proof. References Andrés Ibáñez, Perfecto (1992), “Acerca de la motivación de los hechos en la sentencia penal”, in Doxa, 12, pp. 257–299. Armstrong, David Malet (1968), A materialist Theory of Mind, Routledge & Kegan Paul, London. Ayer, Alfred Julius (1953), “One’s Knowledge of Other Minds”, in Theoria, vol. XIX; ried. in A. J. Ayer, Philosophical Essays, Macmillan & CO. LTD, London, 1959, pp. 191–214. Battaglini, Ernesto (1944), “Sulla presunzione di dolo”, in Giur. Comp. Cass. Pen., pp. 339–340. Bechtel, William (1988), Philosophy of Mind, Lawrence Erlbaum Associates Inc., Hillsdale, 1988; trad. it. Filosofia della mente, Il Mulino, Bologna, 1992.

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Bentham, Jeremy (1789), An Introduction to the Principles of Morals and Legislations, J. H. Burns, H. L. A. Hart (eds.), The Athlone Press, London, 1970. Bulygin, Eugenio (1995), “Cognition and Interpretation of Law”, in Letizia Gianformaggio and Stanley Paulson (eds.), Cognition and Interpretation of Law, Giappichelli, Torino, pp. 11–35. Buxton, Richard (1988), “Some Simple Thoughts on Intention”, in Criminal Law Review, pp. 484 ff. Cadoppi, Alberto (1992), “Mens Rea”, in Dig. disc. pen., VII, pp. 618–652. – (1999), “Verso un diritto penale unico europeo?”, in L. Picotti (ed.), Possibilità e limiti di un diritto penale dell’Unione Europea, Giuffrè, Milano, pp. 31–40. Carrara, Francesco (1907), Programma del corso di diritto criminale, vol. I, X ed., Firenze. Celano, Bruno (1995), “Judicial Decision and Truth. Some remarks”, in L. Gianformaggio and S. Paulson (eds.), Cognition and Interpretation of Law, Giappichelli, Torino, pp. 141–153. Cerezo Mir, José (1998), Curso de derecho penal español II, Tecnos, Madrid, VI ed. Comanducci, Paolo (1992), “La motivazione in fatto”, in G. Ubertis (ed.), La conoscenza del fatto nel processo penale, Giuffrè, Milano, pp. 215–244. Cordero, Franco (1987), Procedura penale, IX ed., Milano, Giuffrè. Cramer, Peter (1991), in Schönke/Schröder. Strafgesetzbuch Kommentar, par. 15, Beck, Munich, XXIV ed. Curzon, Leslie Basil (1984), Criminal Law, M & E, London. Davidson, Donald (1970), “Mental Events”, in L. Foster/J. W. Swanson (ed.), Experience and Theory, University of Massachusetts Press, Amherst, pp. 79–101. Díaz Pita, María del Mar (1994), El dolo eventual, Tirant lo Blanch, Valencia. Duff, R. A. (1990a), “The Politics of Intention: a Response to Norrie”, in Criminal Law Review, pp. 637 ff. – (1990b), Intention, Agency and Criminal Liability, Basil Blackwell, Oxford. Eusebi, Luciano (1993), Il dolo come volontà, Morcelliana, Brescia, 1992, II ed. 1993. Fassone, Elvio (1994), “Qualche riflessione in tema di prova”, in M. Bessone and R. Guastini (eds.), Materiali per un corso di analisi della giurisprudenza, Cedam, Padova, pp. 322–341. – (1996), “La valutazione della prova nel processo penale: dogmatismi antichi e consapevolezze nuove”, in M. Bessone (ed.), Diritto giurisprudenziale, Giappichelli, Torino, pp. 207–220. Feigl, Herbert (1960), “Mind-body, not a Pseudo Problem”, in S. Hook (ed.), Dimensions of Mind, New York University Press, New York. Ferrajoli, Luigi (1989), Diritto e ragione, Laterza, Bari. Ferrer Beltrán, Jordi (2001), “Está probado que p”, in L. Triolo (ed.), Prassi giuridica e controllo di razionalità, Giappichelli, Torino, pp. 73–96.

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Ferrua, Paolo (1993), “Contraddittorio e verità nel processo penale”, in L. Gianformaggio (ed.), Le ragioni del garantismo, Giappichelli, Torino, pp. 212–262. – (1994), “Contraddittorio e verità nel processo penale”, in M. Bessone and R. Guastini (ed.), Materiali per un corso di analisi della giurisprudenza, Cedam, Padova, pp. 342–348. Frisch, Wolfgang (1990), “Gegenwartsprobleme des Vorsatzbegriffs und der Vorsatzfeststellung”, in Gedächtnisschrift für K. Meyer, Berlin/New York, pp. 533 ff. Gascón Abellán, Marina (1999), Los hechos en el derecho, Marcial Pons, Madrid. Geach, P. T. (1960), “Ascriptivism”, in Philosophical Review, 69, pp. 221–225; ried. in P. T. Geach, Logical Matters, Basil Blackwell, Oxford, 1992, pp. 250–254. Gettier, Edmund L. (1963), “Is Justified True Belief Knowledge?”, in Analysis, 23; ried. in A. Phillips Griffiths (ed.), Knowledge and Belief, Oxford University Press, 1967, pp. 144–146. Gianformaggio, Letizia (1988), “Certezza del diritto, coerenza e consenso. Variazioni su un tema di MacCormick”, in Materiali per una storia della cultura giuridica, XVIII, n. 2, pp. 459–487. González Lagier, Daniel (2001), “Los hechos bajo sospecha. Sobre la objetividad de los hechos y el razonamiento judicial”, in P. Comanducci and R. Guastini (eds.), Analisi e diritto 2000, Giappichelli, Torino, pp. 69–87. Hart, H. L. A. (1948), “The Ascription of Responsibility and Rights”, in Proceedings of the Aristotelian Society, XLIX, 1948–1949; ried. in Antony Flew (ed.), Logic and Language, Basil Blackwell, Oxford, 1968, pp. 145–166. – (1960), “Act of Will and Responsibility”, in O. R. Marshall, The Jubilee Lectures of the Faculty of Law, University of Sheffield, Stevens & Sons, Sheffield; ried. in H. L. A. Hart, Punishment and Responsibility, Clarendon Press, Oxford, 1968, III ed., 1973, pp. 90–112. – (1967), “Intention and Punishment”, in Oxford Review, 4; ried. in H. L. A. Hart, Punishment and Responsibility, Clarendon Press, Oxford, 1968, III ed., 1973, pp. 113–135. Kelsen, Hans (1945), General Theory of Law and State, Harvard University Press, Cambridge, III ed., 1949. – (1960), Reine Rechtslehre, II ed., Deuticke, Wien, 1960. Laurenzo Copello, Patricia (1999), Dolo y conocimiento, Trant lo Blanch, Valencia. Mantovani, Ferrando (1992), Diritto penale, Cedam, Padova. Mazzarese, Tecla (1996), Forme di razionalità delle decisioni giudiziali, Giappichelli, Torino, 1996. Nobili, Massimo (1969), “Nuove polemiche sulle cosiddette ‘massime di esperienza’ ”, in Rivista italiana di diritto e procedura penale, pp. 123–193. Oppenheim, F. (1995), “The Judge as Legislator”, in L. Gianformaggio and Stanley Paulson (eds.), Cognition and Interpretation of Law, Giappichelli, Torino, pp. 289– 294.

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Pagliaro, Antonio (1993), Principi di diritto penale, parte generale, IV ed., Milano. Pisa, Paolo (1995), Giurisprudenza commentata di diritto penale, Vol. I, Cedam, Padova. Pitcher, George (1960), “Hart on Action and Responsibility”, in Philosophical Review, 69, pp. 226–235. Prosdocini, Salvatore (1988), Dolus eventualis. Il dolo eventuale nella struttura delle fattispecie penali, parte prima, Milano. Putnam, Hilary (1978), Meaning and Moral Sciences, Routledge & Kegan Paul, London. Quinto, Anthony (1967), “Knowledge and Belief”, in P. Edwards (ed.), The Encyclopedia of Philosophy, vol. IV, Macmillan, London/New York, pp. 345–352. Ragués i Vallès, Ramon (1999), El dolo y su prueba en el proceso penal, J. M. Bosch Editor, Barcelona. Ross, Alf (1979), Über den Vorsatz, Nomos, Baden-Baden. Ryle, Gilbert (1949), The Concept of Mind, Barnes and Noble, New York. Searle, John R. (1993), The Rediscovery of Mind, Bradford, Cambridge/London. Senese, Salvatore (1993), “La motivazione della ‘verità fattuale’ ”, in L. Gianformaggio (ed.), Le ragioni del garantismo, Giappichelli, Torino, pp. 323–339. Smart, J. J. C. (1959), “Sensations and Brain Processes”, in Philosophical Review, 68, pp. 141–156. Taruffo, Michele (1974), “Certezza e probabilità nelle presunzioni”, in Foro italiano, V, pp. 83–112. – (1992), La prova dei fatti giuridici, Giuffrè, Milano. – (1993), “Note sulla verità dei fatti nel processo civile”, in L. Gianformaggio (ed.), Le ragioni del garantismo, Giappichelli, Torino, pp. 340–382. Ubertis, Giulio (1979), Fatto e valore nel sistema probatorio penale, Giuffrè, Milano. Vinciguerra, Sergio (1992), Introduzione allo studio del diritto penale inglese, Cedam, Padova. Williams, Glanville (1983), Textbook of Criminal Law, Stevens, London. – (1987), “Oblique Intention”, in Cambridge Law Journal, 46, pp. 417–438.

About the Authors Champeil-Desplats, Véronique is Senior Lecturer in Public Law at the University of Littoral-Côte d’Opale (France). She holds a PhD in Law from the University of Paris X-Nanterre. She is currently working on legal reasoning and legal interpretation. Her main fields of research are constitutional law and legal interpretation. Selected Publications: Les principes fondamentaux reconnus par les lois de la République. Principes constitutionnels et justification dans les discours juridiques, (2001); “Pluralité des valeurs et raisonnement juridique: les conflits axio-téléogiques de normes”, Analisi e Diritto, 2001; “Alf Ross: droit et logique”, Droit et Société, nº 50, 2002; “Le statut pénal du Président de la République: la fonction doit-elle protéger l’homme?”, Mouvements, nº 29, 2003; “Les conséquences du 11 septembre 2001 sur le droit des étrangers: perspectives comparatives”, La Gazette du Palais, 19–21 octobre 2003, nº 292–294; “Le service public dans les débats constituants de 1946”, Histoire et Service public, G. Guglielmi (dir.), P.U.F., 2004”; “Les droits fondamentaux en droit français: genèse d’une qualification”, in Droit social et droits fondamentaux, A. Lyon/Caen (dir.), (forthcomimg) [email protected] Ferrer Beltrán, Jordi is Senior Lecturer in Philosophy and Theory of Law at the University of Girona (Spain). He holds a law degree from the Autonomous University of Barcelona and a PhD in Legal Philosophy from Pompeu Fabra University (Barcelona, Spain). His research interests concern questions of legal theory and legal systems. Selected publications: Las normas de competencia. Un aspecto de la dinámica jurídica (2000); Prueba y verdad en el derecho (2002), and a number of articles in Rechtstheorie, Analisi e diritto, Ragion Pratica, Associations, etc. [email protected] Holmes, Josh is Lecturer in Law at University College London, and currently also works at the European Court of Justice as Référendaire to Advocate General Jacobs. He holds degrees in Law from Oxford and Harvard. His interests lie in the law and legal theory of the European Union. His research has focused in particular on the nexus between public law and economic law in the European integration process, on which subject he has published widely, including, most recently, an article regarding the limits of EC Com-

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petition law as it applies to public authorities, which is published in the 2004 edition of Current Legal Problems. [email protected] Itzcovich, Giulio is research fellow of the University of Genoa, PhD Student at the University of Pisa, Graduate in Law at the University of Genoa. Research interests in Theory of Legal Argumentation, Contemporary Legal History, European Public Law. Main Publications: “L’integrazione europea tra principi e interessi. Giudici nazionali e Corte di giustizia nella ‘guerra delle banane’ ”, Materiali per una storia della cultura giuridica (forthcoming); “Pubblicità d’Europa. Convenzione europea e costituzionalismo”, DeriveApprodi 22 (2002); “Il diritto come macchina. Razionalizzazione del diritto e forma giuridica in Max Weber”, Materiali per una storia della cultura giuridica 31 (2001). [email protected] Lifante Vidal, Isabel is Senior Lecturer in Philosophy of Law at the University of Alicante. She works especially in the areas of Legal Interpretation and on Legal Discretion. She is the author of the book La interpretación jurídica en la teoría del Derecho contemporánea (Centro de Estudios Políticos y Constitucionales, Madrid, 1999) and also of several articles (“La teoría de Ronald Dworkin: la reconstrucción del Derecho a partir de los casos”, “Interpretación y modelos de Derecho”, “Una crítica a un crítico del ‘no positivismo’ ”, “Dos conceptos de discrecionalidad jurídica”). She has participated as a lecturer in several PhD courses and in Master degrees in Spain and in Latin America. She is a member of the Editorial Committee of Doxa. Cuadernos de Filosofía del Derecho. [email protected] Maniacci, Giorgio is research fellow in the Department of Law, Politics and Society, “Gaetano Mosca”, University of Palermo (Italy), and has a PhD in Analytical Philosophy and Legal Theory, University of Milan. His experience of research concerns the fields of legal epistemology, metaethics, legal theory and legal argumentation. His fundamental publications are: Algunas notas sobre coherencia y balance en la teoría de Robert Alexy, forthcoming in “Isonomia” 20/2004; Equilibrio riflessivo e discorso razionale nell’argomentazione giudiziale, “Diritto e questioni pubbliche”, 3/2003, (http://www.dirittoequestioni pubbliche.org); La teoria del ragionamento giuridico di N. D. MacCormick, in P. Comanducci and R. Guastini (ed. by), “Analisi e diritto 2001. Ricerche di giurisprudenza analitica”, Giappichelli, Torino, 2002. [email protected]

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Marcilla Córdoba, Gema is Assistant Lecturer of Legal Philosophy at the Faculty of Law in the citty of Albacete (University of Castilla-La Mancha). She is graduate and PhD in law. Her main lines of research are the Legal Drafting Studies. She is author of one book – as a result of her doctoral thesis – titled “Law Crisis and Science of Law-Making” (currently in press); and she has written as well some works related to the aforementioned subjet, such as a chapter included in the book Elementos de técnica legislativa (M. Carbonell (ed.), México, UNAM, 2000), and an article about the expression “Legislative Technique”, in Diccionario de Derecho Constitucional (México, Porrúa, 2002). [email protected] Narváez Mora, Maribel is Lecturer in Legal Philosophy, Legal Theory and Law and Society at the University of Girona (Spain). She holds a PhD in Law and she is currently carrying out a PhD in Philosophy. Her main fields of research are philosophy of language and the analytical philosophy of Law, as well as the nature of collective actions and social ontology. Selected publications: Wittgentein y la filosofía del derecho. Una senda hacia el convencionalismo jurídico. (Marcial Pons, Barcelona, 2004); ‘Enunciados filosóficos vs. enunciados teóricos. El caso de la textura abierta del derecho’, in Analisi e Diritto 2002; ‘European Citizens: Rights and Identities’, in J. Ferrer i M. Iglesias (eds.): Law, Politics , and Morality: European Perspectivas I. Globalisation, Democracy, and Citizenship, (Duncker & Humblot, Berlin, 2003) “ ‘Según el derecho . . .’ o la modalidad de los enunciados jurídicos”, in S. Pozzolo (ed.) La legge e i diritti, (Giappichelli, Torino, 2002) [email protected] Poggi, Francesca is postgraduated in “Teoria generale e filosofia analitica del diritto” in July 2003; at present research fellow of the Genoa University. Research interests: theory of norms, with special regard to permissive norms; human rights; the mind-body problem and the other problems related to the mental states and their ascertainment. Main Essays: ‘Obbligatorio’ implica ‘permesso’, in Paolo Comanducci/Riccardo Guastini (eds.), Analisi e diritto 2000, Giappichelli, Torino, 2001, pp. 195–215; Diritti d’agire, permessi e garanzie, in Paolo Comanducci/Riccardo Guastini (eds.), Analisi e diritto 2002–2003, Giappichelli, Torino, 2004, pp. 241–274; I permessi nel diritto, in “Materiali per una storia della cultura giuridica”, 34, n. 1, 2004, pp. 147–187. [email protected]

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Raban, Ofer is BA (City College of New York, 1994), JD (Harvard Law School, 1999), DPhil (Oxford University), has lectured on law in several universities. He is currently practising as an attorney and consultant in New York, USA. Raban Ofer’s study focuses upon the philosophy of law, jurisprudence and judicial ethics by examining current legal theory and the impartiality of the judiciary. [email protected] Turégano Mansilla, Isabel is doctor in Law and “Profesora Titular” of Philosophy of Law in the Facultad de Ciencias Sociales of the Universidad de Castilla-la Mancha (Spain), has been mainly devoted to the study of English Jurisprudence in the nineteenth century. She is the author of a monography on John Austin, disciple of Jeremy Bentham and main inspiration for the first analytical thinkers on whom juridical positivism in Great Britain was founded. Recently she is dedicated to moral and political philosophy, having published a study about feminist criticisms to Rawls’ Political Liberalism based on the dichotomy public/private (Doxa, 24, 2001, pp. 319–347) and some reflections about the concept of constituent power in relation with the debated question of constitution and democracy (in E. Diciotti and V. Velluzzi (eds.), Ordinamento Giuridico, Sovranità, Diritti, Giappichelli Editore, Torino, 2003, pp. 81–105). [email protected]