Rational Law-Giving: Structural and Interpretive Queries

Giovanni Battista Ratti *

Abstract

The paper analyzes two main models of legal rationality: the logical model
and the reason-based model. In particular, it shows that several notions of ra-
tionality are ingrained in such two models and how such notions often differ
significantly. In the last part, it goes on to highlight the main repercussions of
these two models as far as legal interpretation is concerned.

Keywords: Rationality. Logic. Law. Interpretation. Reasons.

Foreword

If one gives a look at contemporary legal systems, one will hardly regard them
as rational. There are many layers of norms, which have been issued by different
and sometimes opposed lawgivers, in different moments. Many of such norms
conflict with each other, and there are many cases which have not been solved
by the lawgivers. Not infrequently, it is hard to envisage what are the reasons (if
any) underlying a certain rule, and often we have to deal with normative systems
that are programmatically vague  1. If some bits of rational construction are intro-
duced into contemporary legal systems, this is normally due to the systematizing
task carried out, as it were, “locally” by jurists and judges  2.

*  Tarello Institute for Legal Philosophy, Department of Law, University of Genoa, Via Balbi
30/18, 16126, Genova, Italy, email: gbratti@unige.it.
This paper has been presented, in previous versions, at the following seminars: Reason(s), Reason-
abless and Law, Department of Law, University of Genoa, December 5-6, 2016, Legal Responsibility
and Argumentation. 7th Seminar in Legal Theory Oxford-Girona-Genoa, Faculty of Law, University of
Girona, April 7, 2017, Seminario en el marco del Proyecto Fondecyt 11160737 «Seguridad jurídica
a través del estudio de las antinomias», Facultad de Derecho, Universidad Adolfo Ibáñez, Santiago
de Chile, August 30, 2017. I thank those who organized and participated in these seminars for their
helpful remarks.
1 
Almost sixty years ago, Giovanni Tarello (1957: 15) already observed: «l’idilliaco quadro, che
molti oggi si immaginano, di un giurista che si diletta di tranquille e raffinate esercitazioni su poche,
stabili, durature norme, non ha avuto mai rispondenza nella realtà, è certo d’altra parte che l’odierno
accavallarsi di leggi e regolamenti, da un lato, di sentenze e di circolari dall’altro, crea seri imbarazzi al
giurista, non meno al teorico che al pratico, e rende estremamente difficile, per non dire impossibile,
quel tipo di conoscenza giuridica che nel secolo scorso da molti si credeva di possedere».
2 
See Guastini 2013 and Ratti 2015.

ANALISI E DIRITTO 83
2017: 83-100
 Giovanni Battista Ratti

However, the idea that the lawgiver ought to be rational is still alive and wide-
spread among jurists and especially among legal philosophers. In recent years, le-
gal philosophical voices, for instance, have multiplied in asserting that (deontic)
logic is a set of rules which define the rational lawgiver, instead of determining
the validity of derived rules. Also in recent year, many authors have suggested
that rationality of the law (if not of the lawgiver) is to be found either in the rea-
sons underlying the rules and the relations among them, and/or in coherence (as
different from consistency) to be found at the level or principles justifying legal
rules. Other authors stress the importance of legal interpretation in reading the
law as if it were the product of a rational lawgiver.
In this paper, I want to survey two great models of rational lawgiving, which
are based on partially different conceptions of rationality in the normative do-
main, and determine their repercussions in terms of legal interpretation.
While the first model is based on logical rationality (i. e. lack of inconsisten-
cy, normative completeness and logical derivation), the second model is based
on the hypothesis that lawgivers necessarily have (axiological) ends and their
law-giving activity is rational in so far it is inspired by such ends.
It should be borne in mind that my main aim here is to describe existing con-
ceptions of rational law-giving, rather than providing new theoretical results  3.

1. The Logical Model

The first model, which I dub (in lack of a better name) “logical model”, is
based, roughly, on the notion that a lawgiver is rational as far as it provides a logi-
cally consistent and complete set of regulations of the human conduct. However,
the notions of consistency and completeness used in different characterizations
of such a model differ significantly and are not wholly determinate.

1.1.  Consistency
According to a first characterization, consistency is the absence of conflicts
between two or more norms belonging to the same system of norms. However,
the notion of consistency is not univocal in the domain of juristic and legal phil-
osophical speculation.
According to Von Wright (1999: 35) “The definitions of normative consis-
tency and entailment rely on the notions of doability of norm-contents [i. e. of

3 
In carrying out the proposed task, I shall only focus on authorities that provide general and
abstract norms, while I skip over those giving (only) individual and concrete prescriptions. While this
stance applies mainly to legislatures, it is far from uncommon that governmental organs and judges
frame general and abstract norms that apply to classes of cases, rather than particular instances of such
classes. In brief, I shall focus on what is sometimes called “material legislation”, as opposed to “formal
legislation” (being the latter the production of any statutory provision by the legislatures, regardless of
their generality). See Bulygin 2015: 78-81 and Guastini 2014: 135-137.

84
 Rational Law-Giving: Structural and Interpretive Queries

the action qualified by the relevant norms]”. A lawgiver provides a consistent set
of regulations (and is, in this sense, rational) if he does not bring about two or
more norms, which cannot be satisfied at the same time. For instance, the norms
“Everyone ought to attend the Communist Party meeting every Saturday” and
“Everyone ought not to attend the Communist Party meeting every Saturday”,
put their addressees in a predicament, for any course of action they choose, they
will surely breach one of the two norms. The contents of both norms (i. e. attend
the meeting and not attend the meeting) are not simultaneously doable.
This thesis amounts to stating that when the lawgiver brings about a norma-
tive inconsistency is ipso facto acting irrationally  4.
This thesis might be and has been critically discussed.
As Celano (2013: 139) points out, a lawgiver may rationally issue conflicting
norms, when he aims at non-standard legislative goals (i. e. goals different from
effective guidance of human conduct through the compliance of norms). This
occurs, for instance, when he wants to induce a state of puzzlement or nervous
breakdown in the norm-addresses  5.
To my mind, this “pragmatic” criticism is correct, but it also has, as it were, a
“structural counterpart”, which deserves to be examined.
Insofar as categorical norms are concerned, it seems hard to deny that a
lawgiver issuing two conflicting norms acts irrationally (and perhaps he is so
openly inconsistent that pursuing non-standard goals through the issuance of
such conflicting norms would probably fail). But it must be observed that the
rationality of the lawgiver and the rationality of the norm-addressee may differ,
so that what is irrational for the former might not necessarily be irrational for the
latter. If one is exposed to two contrary norms —such as Op and O p— one is
in a severe predicament, since any course of action she chooses, she will breach
a norm. Contrariwise, if one is exposed to two contradictory norms —such as
O p (“Forbidden p”) and O p (“Permitted p”)— one is always better off in
complying with the imperative norm and not availing oneself of the permission.
No breach is present in such a second scenario.
However, regarding conditional norms, things are more complex than that.
If we reconstruct such a kind of norms according to the so-called “insular
conception”, which represents conditional norms as the deontic qualification
of a conditional sentence, the joint issuance of two conflicting norms can be
reconstructed at least in two forms: “O(p q)” & “ O(p q)”, and “O(p q)”
& “O(p q)”.
The former, which is the favorite way of reconstructing conflicting condition-
al obligations among deontic logicians, represents the conflict between the ob-
ligation of making true the state of affairs “p q” and the permission of making
true the state of affairs “p &  q”, which is the negation of “p q”. One cannot

4 
Von Wright 1991: 271.
5 
Long exposure to conflicting norms during the childhood is held to be one of the main causes of
schizophrenia. On this point, see the seminal Bateson, Jackson, Haley and Weakland 1956.

85
 Giovanni Battista Ratti

abide by the obligation and use the permission at the same time. But if one
complies with the obligation, then one does not ipso facto breach the permission,
since, among other things, permissions cannot be breached  6.
In turn, the latter sentence symbolically represents the way in which law-
yers commonly conceive of conflicts between legal norms. The same set of facts
is connected to conflicting normative consequences. The conflict between the
norms N1 “If one damages somebody, then one ought to redress him/her” and
N2 “If one damages somebody, then one ought not to redress him/her” may be
regarded as a typical example of a conflict between legal norms.
However, it must be noted that, from the stance of symbolic logic, the sen-
tence providing that “O(p q)” & “O(p q)” is not a real logical conflict, since
it does not imply any sentence whatsoever. Rather, it logically implies “O p”  7.
This means that a lawgiver issuing such norms is not necessarily irrational. He
can be a malicious lawgiver, but totally rational (indeed, he is logically ratio-
nal)  8. In issuing such a conjunction of norms, the lawgiver is entailing the norm
according to which the addressee should not put himself in the scenario that
triggers the application of the conflicting consequences.

1.2.  Legal Consistency and Logical Consistency

In juristic reasoning, legal conditionals show a partially different behavior

from material conditionals. In particular, the antecedent of a norm is taken, as
it were, as a “case-identifier” condition, rather than a sufficient condition of the
consequent. The normative consequences provided by hypothetical norms gen-
erally apply only when the key operative factors singled out by the antecedent
obtain. When the norm antecedent does not materialize, the consequence does
not follow, since the norm is simply not applicable: but, unlike propositional log-
ic (where the conditional is true when both the antecedent and the consequent

6 
It must be observed that complying with the obligations is “easier” than using the permission,
since there are three states of affairs that satisfy the norm “O(p q)”, namely “p & q”, “ p & q” and “
p & q”. These states of affairs are those in which the conditional embedded in the norm is true and
accordingly the norm is satisfied.
7 
Analogously with what happens in propositional logic. This is easily seen from the following
truth-table:

p q & p q p
111 0 100 1 0
100 0 111 1 0
011 1 010 1 1
010 1 011 1 1

8 
This idea is found in Ross 1968: 174.

86
 Rational Law-Giving: Structural and Interpretive Queries

are false), this does not render the normative conditional, as it were, “true” or
“satisfied”. Consequently, an inconsistency between conditional norms materi-
alizes whenever a certain case p is connected to two categorical norms which are
contrary or contradictory.
The simultaneous membership of “O(p q)” and “ O(p q)” in a certain
normative system of course would bring about a normative inconsistency, but
this does not seem a correct reconstruction of actual antinomies between condi-
tional norms which are found in normative documents and the way they are read
by jurists. For jurists, ordinary antinomies between conditional norms consist
in the connection of two incompatible normative solutions to the same set of
key operative factors. In other words, a certain case p is inconsistently qualified
by different norms. The current reconstruction of this phenomenon is correct-
ly provided by stating that we have an antinomy whenever a normative system
contain norms like “O(p q)” and “O(p q)”, or norms which can be logically
derived from them. More precisely, it is usual to distinguish between different
kinds of inconsistency, taking into account the possible relations of complete
overlapping, inclusion, or intersection, between the antecedents of the conflict-
ing norms. Here, we shall briefly recall such a classification with an eye to the
expressed or implicit character of the conditional norms involved in the conflict.
We have an antinomy between two expressed norms whenever a certain norma-
tive system NS contains two norms of the sort we have just mentioned “O(p
q)” and “O(p q)”, since their antecedents completely overlap. We have an
antinomy between an implicit norm (derived by enrichment from the more gen-
eral norm) and a more specific expressed norm, whenever the normative system
NS contains norms like “O(p q)” and “O(p & r q)”, since NS is inconsistent
only regarding the whole antecedent of the more specific norm (which is totally
included in the antecedent of the more generic norm), so that NS is partially free
from contradictions regarding case p, in the partition p &  r. Finally, we have
an inconsistency regarding only implicit norms (both derived by using enrich-
ment) whenever the normative system NS contains two norms like “O(p q)”
and “O(r q)”, since NS is inconsistent only regarding the intersecting case p
& r, and is free from contradictions when the antecedents of both norms do not
intersect (i. e. in cases p &  r, p & r, and of course p &  r). Observe that this
classification presupposes the application of enrichment (alias, strengthening of
the antecedent)  9. But, in turn, enrichment presupposes the logical behavior of
material conditionals.
Therefore, we may say that jurists and legal theorists usually call a normative
inconsistency (or antinomy) a sentence of the kind “O(p q)” and “O(p q)”—
which, as we mentioned, is no conflict in propositional logic, but rather the
conjunction of a material conditional and the corresponding conditional denial.

9 
In propositional logic, enrichment (or strengthening the antecedent) is symbolized as fol-
lows: (p q) (p&r q). As regards norms, we can symbolize it in the following manner: O(p q)
O(p&r q).

87
 Giovanni Battista Ratti

Moreover, on this reconstruction, the ex falso quodlibet principle does not affect
normative systems in their whole, since a normative contradiction trivializes only
the case referred to by the antecedent to which two incompatible consequences
are connected . There are reasons to think that this view is too positive, and that
the effects of a normative conflict exceed the trivialization of the case referred to
in the antecedent of the conflicting norms, but the articulation of these reasons
is far beyond the scope of this paper. Here, it suffices to notice that, according
to lawyers, only relevant norms must be taken into account in order to solve a
certain legal question and this seems to allow one to limit the destructive effects
of conflicts between norms.
This juristic “logical package”, despite appearances to the contrary, is pre-
carious from the logical point of view. In particular, it presupposes two tenets
which are at odds with each other. On the one hand, it holds that normative
conditionals do have the same logical behavior as material conditionals (what is
presupposed in current juristic taxonomy of different kinds of antinomies). On
the other hand, it holds that normative conditionals do not have the same logical
behavior as material conditionals (what is presupposed in current juristic defini-
tion of inconsistency between conditional norms and the rational reconstruction
of its effects). In fact, we may only identify and classify antinomies as we did (and
it is common to do), by embracing enrichment as a valid form of inference: i. e.,
only if we do treat normative conditionals as material implications. By contrast,
we may only rule out the traditional effects of inconsistency between condition-
als and the conjunction of a normative conditional with its conditional denial
only if we do not treat normative conditionals as material implications. This ren-
ders the notion of consistency used in the legal domain, and the related notion of
logical rationality, quite uncertain.

1.3.  Normative Completeness

“Completeness” is an ambiguous concept in lawyerly discourse and legal the-

ory. Sometimes it is used to designate completeness regarding the content of
normative systems, highlighting the absence of gaps in the law. Some other times
it is used to designate completeness in a formal sense, i. e. the “complete” deri-
vation of logical consequences from legal norms  10. I analyze here the former kind
of completeness (which I dub, following Alchourrón and Bulygin, “Normative
Completeness”), whereas in the next section I shall analyze the latter (which I
dub, in turn, “Logical Completeness”).
Alchourrón and Bulygin (1971: 165-180) famously conceive of the first kind
of completeness as a rational ideal for lawgivers. However, if doability of norma-
tive contents is the main (or even the only) criterion of legal rationality, the pres-
ence or lack of gaps in a normative system is irrelevant regarding the rationality

10 
Bobbio 1950 seems to use it in this sense.

88
 Rational Law-Giving: Structural and Interpretive Queries

of the lawgiver  11: according to such a view, in fact, a lawgiver is rational in so far

he does not create inconsistencies. As a matter of course, this can be done also
by refraining from qualifying a certain action or state of affairs.
However, it can also be observed that a gap in the law is a situation in which
the lawgiver could not guide the human conduct, in a way that is similar to what
happens in normative conflicts. Moreover, if the lawgiver imposes on the legal
appliers the solution of all the legal cases in a justified manner and in accordance
with preexisting legal norms, he must provide such appliers with a complete
system of norms  12. Otherwise, the appliers cannot possibly fulfill their duty, for
they would be exposed to an impossible-to-be-complied obligation, which is ir-
rational in its own right. And this is a situation which is again very similar to the
one faced by the addressee of a conflict between norms: one in which a certain
obligation cannot be complied with  13.
However, it does seem exaggerated to want the lawgiver to solve any possible
case  14: it does not seem plausible that the lawgiver takes into account the nor-
mative qualification of any possible state of affairs whatsoever, including those
which everybody regards as completely irrelevant, such as to scratch one’s nose
or to move one’s pinky. Still, it seems indeed required by logical rationality, be-
cause of what we observed, that the lawgiver solves all the relevant cases, i. e.
those cases which stem from combining the relevant properties and its comple-
mentary properties  15.
Such theses are in need of a more formal analysis.
(1)  Let us analyze absolute completeness (i. e. completeness regarding all
cases). Not only, as we mentioned, is it empirically implausible, it is also concep-
tually unobtainable if we want to deal with normative systems, which contain at
least one conditional norm, and we want them to be consistent. Indeed, there is
no rule of closure of such a kind of systems that does not create contradictions
that did not exist before. Let us briefly see why.
Suppose that we are interested in a normative system S that presents the fol-
lowing characteristics. It qualifies only one action (say, “R”: “Inheritance by the
heir on testator’s death”). Its relevant cases are “w” (“Valid will”) and “h” (“Ho-
micide of the testator”). Such a normative system connects the case “w & h”
with the consequence “O R” (that is “Forbidden R”) and the case “w & ~h”
with the qualification “PR” (“Permitted R”)  16. The system is gapless and as-
sumed to be consistent. Now, let us take only “w”, which belongs to a class of
cases less specific than the class of relevant cases (“w” and “h”). The system Sα
does not provide any solution for “w”, considered in itself. If we apply a rule of

11 
Maranhão 2002: 223.
12 
See again Alchourrón and Bulygin 1971: 175-178.
13 
Celano 2013: 142.
14 
Maranhão 2002: 223.
15 
Alchourrón and Bulygin 1971: 22-27.
16 
To be actually complete, the system should provide a bilateral permission of the kind “PR & P R”,
but here I shall skip over this complexity.

89
 Giovanni Battista Ratti

closure of the sort of “Everything that is not forbidden it permitted”, it follows

that the solution for the case “w” is “PR” (“Permitted R”). However, conse-
quently, S would connect the case “w & h” with two contradictory solutions:
“PR” and “O R”. Hence, rules of closure such as the one we mentioned close
the system at the price of making it indeterminate: they introduce an antinomy
into a system that was originally consistent  17. It follows from that that absolute
closure and consistency are conflicting rational ideals.
(2) Regarding relative completeness (i. e. completeness concerning the class
of relevant cases), things are not as easy as they seem at face value. A first obvi-
ous, but quite quixotic, possibility is that the lawgiver is very careful in qualifying
all the possible combinations of the relevant properties and consequently there
is no gap in the law regarding relevant cases. A second possibility, much closer to
reality, is that the lawgiver provides rules of closure or gaps-filling, to be used by
lawyers at large and judges in particular. But this second scenario is not without
perils.
Consider, for instance, the example of a norm, which allows one to retain
a car if he acquired it in good faith and for a valuable consideration (case 1)  18.
By hypothesis, the normative system stemming from this norm does not solve
the cases deriving from the combination of all the relevant properties with their
complementary properties, to wit: good faith and lack of consideration (case 2),
mala fide (i. e. absence of good faith) and consideration (case 3), and mala fide
and lack of consideration (case 4). Is such a situation irrational? Indeed, it seems
so at first sight: we have three relevant cases without qualification. Legal practi-
tioners would certainly ponder how to solve such gappy states of affairs.
However, one should observe that the application of the common rules of
closure would sometimes bring about scenarios, which would not always be re-
garded as completely rational. For instance, the application of the above-men-
tioned principle according to which “Everything that is not forbidden is per-
mitted” entails, regarding the normative system at hand, that one can retain the
car even in the case of mala fide and lack of valuable consideration: this would
be tantamount to legalizing robbery qua lawful method of acquiring a car. Ac-
cordingly, the system would be normatively rational, but would face problems of
axiological coherence (we shall return to such problems in section 2).
To face such problems, it has been suggested that one should find a middle
way between the just mentioned principle of closure and the specular principle
that “Everything that is not permitted is forbidden”  19. A possibility might be
that of a principle that states that, when facing a relevant gap, one should ask
the lawgiver for authorization to solve the unqualified conduct in a certain way.
Such a principle, however, is not necessarily more rational than other rules of
closure: indeed, a legal system providing such a rule would be hardly function-

17 
See the formal demonstration in Alchourrón and Bulygin 1971: 137-138; 194 ff.
18 
Maranhão 2002: 226.
19 
Von Wright 1991: 280.

90
 Rational Law-Giving: Structural and Interpretive Queries

al  20. However, what happens regularly is that judges fill the gaps on the basis of
the rules that give them the power to qualify unqualified cases in order to decide
controversies  21.
Consequently, regarding normative incompleteness, there are two possible
faces of legal rationality: the presence of gaps concerning relevant cases and the
“rationality” of gaps-filling methods provided by the lawgiver. Sometimes, the
rationality of such methods may be logically assessed, as we have seen previously,
but some other times, their purported “rationality” (or “irrationality”) is of an
axiological character. As a matter of course, the fact that in some sectors of the
legal systems some rules of closure appear more rational than others does not
depend on logic, but on the ideology, which is by and large preferred in that
sector  22. For instance, that in criminal law it is rational to provide the rule of
closure that makes the unqualified permitted or that in administrative law it is
rational to have a closure rule providing that state organs are not entitled to do
what transcends their competence is predicated on a liberal view of the state and
its powers. Logic and strict logical rationality have nothing to do with it.

1.4.  Logical Completeness

As we have mentioned previously, some authors refer to completeness in the

sense of the complete derivation of logical consequences from legal norms. This
is, strictly speaking, an unobtainable ideal: logical consequences are infinite, so
no one is able to derive them all. What can be done is to derive all the conse-
quences, which are related to relevant cases, i. e. cases that are composed by com-
bining the relevant properties and their complements. This is normally done by
jurists, however, and not by lawgivers. Therefore, on this score, most lawgivers
may be regarded as irrational, if logical completeness is considered as a standard
of rationality. Of course, it can be objected that, if one accept that norms have
logical consequences, then one must accept that logically derived norms are val-
id, when the norms from which they are derived are in turn legally valid.
However, Luigi Ferrajoli has recently held that logical completeness is not a
function of jurists’ systematization, but rather a task to be carried out by legis-
latures.
Very roughly put, Ferrajoli (2007) holds a multi-layered view of the rationality
of the lawgivers, which is founded on the idea that logic is a set of prescriptions
directed to lawgivers that aspire to be rational  23. In particular, he holds that, in
contemporary constitutional systems, constitutional lawgivers ought not to issue

20 
Something of this sort is found in those (few) judicial decisions when a court (especially a su-
preme or constitutional one) does not qualify a gappy case and requires the legislative power to do so.
21 
For instance, article 1 of the Swiss civil code expressly authorizes them to do so.
22 
Mazzarese 2000: 128.
23 
Guastini 2008.

91
 Giovanni Battista Ratti

inconsistent norms and that legislatures ought not to enact norms, which are
incompatible with constitutional norms. Ferrajoli also holds the view that a legal
system ought to be complete, for «any conduct whatsoever supposes some deon-
tic modality of which it is a topic»  24. This entails that law must be complete (also)
at the constitutional level. In turn, this means that there should not be empty
space of constitutional law: everything ought to be settled by the constitution.
If this is correct, lawgivers do not have any free space for legislating. They must
limit themselves to deriving, in a non-trivial way and by means of legislative acts,
all the norms, which are entailed by constitutional norms. This is to say that, in
addition to the standards of consistency and normative completeness, lawgivers
different from the framers are to be regarded as rational only if they derive all the
relevant norms from those norms which belong to higher ranks than the norms
they may enact.

2. The Reasons-Based Model

The reason-based model is predicated on the twofold idea that a) rationality

depends on reasons-giving  25, b) legal norms are and/or are founded on reasons  26.
It follows from that that to give laws is to give reasons  27. This is, in a sense, but
a novel way of reframing the ancient lawyerly adage of the “necessary rationality
of the legislator”  28.
The dependence of lawgivers’ rationality on reasons commonly has two com-
ponents  29: (1) the lawgiver is rational in so far he offers reasons or found his
norms on reasons; (2) his norms are the best means to achieve the purposed
reasons.
Component (2) is clearly a consequentialist element: we cannot determine
what the best means are, in order to further the purpose or purposes underlying
the norm, before we have a clear grasp of the consequences that follow from
the application of the norm. For instance, rules enforcing threshold agreements
are normally issued in order to enhance the purchasing power of workers’ wag-
es. However, in many cases, they end up producing inflation and consequently
diminishing the purchasing power of workers’ salaries. Therefore, even though
rules enforcing threshold agreements are normally made to protect salaries, they
are hardly the best tool to achieve such a goal. So, this side of rationality can only
be assessed ex post. At any rate, I shall not deal with it any longer in this paper.

24 
Ferrajoli 2007: I, 67; III, 22. In Ferrajoli’s symbolism, this is represented by the following sen-
tence (named P2 in his axiomatic system): “(x) (CONx ( y) MODyx)”.
25 
Alchourrón 2010: 129.
26 
Schauer 1991.
27 
On a recent decision of the Italian Constitutional Court providing an obligation of explicit
reason-giving for the legislatures, see Pepe 2015.
28 
See Bouvier 2004; Tarello 1980: 370-371.
29 
Bobbio 1971.

92
 Rational Law-Giving: Structural and Interpretive Queries

Component (1) has an unclear status in current jurisprudence. For some au-
thors, reasons are a defining element of legal systems  30: they are part of the very
definition of “law”. When so regarded, rationality is no longer a regulative ideal,
but a definitional fiat of legality. Accordingly, a lawgiver is, by definition, rational
in any circumstance whatsoever, for any act of lawgiving is also an act of direct
or indirect reason-giving. Nevertheless, this is not a very promising strategy to
analyze the law in order to assess its rationality. It is better to conceive of norms
as standards possibly backed by reasons: we might say that one may always at-
tribute underlying reasons to norms, but not any norm is originally designed to
serve a certain reason or set of reasons  31. Here I shall inquire into the possible
relations of norms and reasons, first by dealing with the possible defeasibility
of norms triggered by underlying reasons, and then by examining the related
notion of coherence.

2.1.  The Defeasibility of Norms Caused by Reasons: A Sketch

One of the most interesting problems of so conceived norms is their structur-

al relation with the reasons underlying them. A model that conceives the rules as
always open to be defeated on the basis of the reasons they (directly or indirectly)
serve would be a rule-free system: indeed, a system where the rules do not play
any role in guiding the decision which determines the solutions to particular
cases.
The problem of the rules susceptibility to be overcome by their underlying
reasons has often been discussed in the recent literature, under the heading
of “defeasibility”. Fred Schauer has highlighted the property of norms to be
over-inclusive, i. e. to include cases that are not covered by the justification un-
derlying the rule, or under-inclusive, i. e. not to include cases that are covered
by the underlying justification for the rule  32. A first form of defeasibility consists
precisely in giving judicial authorities the power to set aside a certain norm in the
cases in which it is over- or under-inclusive. According to Schauer, a system com-
posed solely of reasons would be largely irrational in terms of efficiency, stability,
and equality. In such a system, in fact, legal reasoning would require, in every
instance, to “balance” all the reasons applicable to the case, with great waste of
argumentative energies, heavy losses in terms of efficiency, and obvious prob-

30 
Marmor 2011: 5: «Everybody agrees, or so it seems, that the law purports to provide us with
reasons for action. Law’s essential normative character is not in any serious doubt. The doubts concern
the question of what kind of reasons legal norms provide».
31 
Tarello 1980: 366-367. Schauer’s theory is somewhere in the middle between Marmor’s and
Tarello’s. If, on the one hand, Schauer 2009: 15 affirms that «Every rule has a background justification
[...] which is the goal that the rule is designed to serve», on the other hand one can clearly draw, from
his analysis of the role played by intention and purpose in the interpretation of rules (Schauer 1991:
218-221), theoretical views that are very much closer to Tarello’s.
32 
See Schauer 1991, 2009.

93
 Giovanni Battista Ratti

lems about the fair treatment of the particular dispute to be resolved in court.
On the other hand, a system never allowing reasons to be taken into account
would be regarded as extremely irrational regarding the solution to be given to
particular cases that fall into the extremes of the area of over- or under-inclu-
siveness. According to Schauer’s theory, consequently, the rationality of a certain
legal system is a function of the balance between its stability and certainty (based
on the straightforward application of norms or rules) and the all-things-consid-
ered “correct” outcome regarding particular cases (based on the defeasance of
rules in light of underlying reasons). The point where this balance must be struck
is not objectively determinable. So, all-or-nothing rationality tends here to fade
into gradual reasonableness.
Be this as it may, one must observe that the reason-based model is manifest-
ly multilayered. There is first the level of rules or norms, which has normative
completeness and consistency as its ideal standards for rationality  33. Second, we
find the level of reasons, regarding which one may doubt whether consistency
and completeness really apply, since reasons are always revisable and not liable
to logical manipulation by means of modus ponens and strengthening of the
antecedent  34. Probably, their standard of “rationality” is that, to use MacCor-
micks’s famous catch phrase  35, they ought to “hang together”. Finally, we have
the relations between reasons and rules as the overarching standard of rationality
of the legal systems in terms of the mentioned balance between stability and
correctness. These relations are in need of further theoretical analysis: to them I
shall turn in the next section, under the heading of “coherence”.

2.2.  Coherence as Second-Order Rationality

The concept of coherence is a highly contested one. For the sake of the pres-
ent argument, I shall follow MacCormick (1984) in regarding coherence as a
justificatory relation among principles (viz. reasons) and a certain set of rules to
which such principles supposedly underlie.
A normative system can be said to be coherent regarding a certain set P of
underlying principles if and only if all (or most) of its rules are instances of P, in
the sense that all (or most) of its rules are justified by P. According to this idea,
coherence —unlike consistency and completeness— is not an all-or-nothing
property, but a gradual one.
According to a widespread view, coherence serves three main functions: a
simplifying one, an integrating one, and a defeating one. Simplification is given
by the circumstance that a certain normative system can be traced back to a lim-
ited array of underlying principles, liable to be further developed into new rules.

33 
See Schauer 1991: 223-226.
34 
Alchourrón 2010.
35 
MacCormick 1984: 235.

94
 Rational Law-Giving: Structural and Interpretive Queries

Integration consists in the possibility of filling up gaps in the normative system

by reaching out to its underlying principles, so that the norm introduced into the
system to fill the gap increases the overall coherence of the normative system.
Defeasance points to the fact that rules which bring about incoherent results can
be revised accordingly.
Nevertheless, it is important to note that there are two different ways of un-
derstanding the relation of justification between rules and principles (or rea-
sons), and accordingly two different ways of understanding the very notion of
principle, that have considerable impact over these three functions of coherence.
A first interpretation of the idea that principles “justify” rules, and of con-
ceiving the former, is to understand “principles” as general norms that are ob-
tained through a process of abstraction, or complete induction, from the rules of
a given normative system. On this interpretation, it seems perfectly sensible to
maintain that principles function as a simplification of a system of rules, and that
they cannot conflict with such rules. However, so understood, principles cannot
discharge the integration and the defeasibility functions. This is due to the fact
that principles, on this interpretation, do not allow deriving solutions different
from those that follow from the rules, as they are mere reformulations of the
rules. Still, some authors have correctly pointed out that so inferred principles
are normally used by jurists to create “new” rules by means of strengthening the
antecedent.
As an alternative, one can claim that though rules “exemplify” principles,
the latter are not mere reformulations of the former, but express values or ends
presupposed by the rules. On this reading, principles may eventually allow de-
riving solutions for cases not regulated by the rules, so that arguments based on
principles possess a certain “ampliative” character, and they may even justify
solutions in conflict with the rules of the system, and thus are capable of dis-
playing the functions of integration and defeasibility. By contrast, it is not clear
whether principles, on this understanding, can operate as a simplification of a
system of rules, since the idea of simplification loses its proper sense if we are not
dealing with axiomatic bases with identical normative consequences where one
of them is more economical than the other is. But here, insofar as the considered
principles allow deriving normative solutions for cases which are not regulated
by the rules of the system, and even normative solutions incompatible with those
that follow from the rules, it is clear that the system of rules and the system of
principles may have different consequences. It is only within this second under-
standing of principles that the idea of coherence of a system of rules with a set of
underlying principles is significant and not merely trivial, as in the previous un-
derstanding, where rules cannot but cohere with the principles abstracted from
these very rules.
It is interesting to inquire into the relations between coherence (understood
as a relation between a system of rules and a system of principles) and the pre-
viously examined properties of completeness and consistency of both systems.
First, the simplifying function of coherence seems to be connected to logical

95
 Giovanni Battista Ratti

completeness, in that it allows one to build an axiomatic basis, liable to be devel-

oped into all its relevant consequences. However, it should be kept in mind that
this function of coherence only holds in a proper sense for the first understand-
ing of principles, and that on this reading any system of rules is trivially coherent
with the principles abstracted from them.
Now, on the second understanding of principles, and when it comes to the
system of rules, coherence is not necessarily connected to consistency of this
latter system. In fact, coherence sometimes seems to require the introduction
of a new (unexpressed) rule in the system which is in conflict with an older
(expressed) one: the famous case Riggs v. Palmer is a clear instance of this phe-
nomenon.
As everybody knows, the legal question in Riggs v. Palmer was whether Elmer
Palmer, who had poisoned his grandfather, was entitled to inherit his grandfa-
ther’s assets under the Statute of Wills which was in force, at that time, in the
state of New York. The Statute of Wills was completely silent about unworthy
beneficiaries, and only provided that one was entitled to inherit if one was so
vested by a valid will. One could maintain —as Gray J. actually did in his dis-
senting opinion— that Elmer was entitled to inherit under both the Statute of
Wills and his grandfather’s will. However, the majority opinion, drafted by Earl
J., offered a different solution: the U.S. legal system could not admit, from an
axiological point of view, the extremely unjust result of letting the inheritance
go to someone who killed his own testator. The rejection of such a solution was
founded on the presumed existence, within the U.S. legal system, of the principle
according to which “No man should profit from his own wrong”. On the basis
of this principle, an unexpressed rule was introduced according to which “The
unworthy beneficiary, though granted the inheritance by a valid will, is not enti-
tled to inherit”. Manifestly, such a rule conflicts with another rule (regarded as in
force until the Riggs case) according to which a valid will is sufficient in order to
inherit the testator’s assets. This case exemplifies a situation where the exigencies
of axiological coherence brought the legal applicators to introduce a new rule
into the system, one which made it normatively inconsistent.
This last conclusion is counterbalanced by another usual role assigned to
principles: sometimes we appeal to a set of underlying principles to give priority
to one normative solution within a set of inconsistent solutions derivable from
the system of rules. In such case, principles are used to restore consistency in
the system of rules. Moreover, it may be the case that coherence with a set of
underlying principles could even stop whatever consequences to follow from
a normative contradiction within the system of rules, for they would not match
the requirements set by those underlying principles. If this is correct, coherence
would thus work as a warrant for normative consistency.
When it comes to the system of underlying principles or reasons —again, on
their second understanding— a meaningful predication of coherence of a set of
rules regarding such a system seems to assume that the latter is not inconsistent,
since an inconsistent system of principles justifies any rule whatsoever.

96
 Rational Law-Giving: Structural and Interpretive Queries

However, consistency is a problematic property when it is predicated of a

system of principles or reasons, since both of them are regarded as defeasible
standards. Indeed, if the antecedent of a principle is not regarded as a sufficient
condition (or as one providing sufficient conditions) of its consequent, no incon-
sistency is derivable from them, for inconsistency is only derivable when modus
ponens and strengthening of the antecedent are applicable.
It would seem, then, that the system of principles or reasons cannot be in-
consistent by definition, since it is composed of defeasible normative standards.
If it is so, however, it is not clear, from a logical point of view, how the relation
of coherence between the system of principles and the system of rules should
be framed. An option consists in regarding the principle as a “tentative confir-
mation” of the normative consequence provided by a certain set of rules. The
more confirmed a certain normative solution provided by a rule is, the stronger
appears the relation of coherence between the underlying principles and such
a rule. However, what is important to stress here is that the idea of competing
confirmations presuppose inconsistencies of solutions within the system of rules.
Coherence relations would thus be, or might be used, as tools liable to tentatively
solve antinomies afflicting sets of rules.

3. Some Remarks on the Notion of a Rational Lawgiver

as an Interpretive Tool

What we have observed so far may be useful to understand the role of ra-
tionality as an ideal for legal interpretation. According to a widespread view,
“reading, understanding and interpreting a legal text is to take into account the
point of view of the rational law-maker”  36, i. e. an ideal lawgiver that «functions
as an ideal point of reference for the purpose of defining the rationality of a
decision»  37.
Depurated of any metaphoric content, the idea of a rational lawgiver as a tool
for legal interpretation has three main varieties.

(1) According to a first variety, the argument from rational lawgiving aims

at discarding those interpretative solutions which are held as “absurd” or “un-
reasonable”, i. e. which are at odds with the rational character ascribed to the
lawgiver  38.
(2) According to a second variety, such an argument brings about a
strictly systematic interpretation, aiming at preventing antinomies (and gaps)
in the law  39.

36 
Capone 2016: 147.
37 
Id., 151.
38 
Tarello 1980: 369.
39 
Nowak 1969.

97
 Giovanni Battista Ratti

(3) According to a third variety, the argument from rationality aims at an

axiologically laden interpretation, which pursues the best or most valuable pur-
poses according to a certain axiological perspective  40.
These three varieties are often regarded as intertwined  41. The first variety,
actually, is parasitic on the way in which we conceive the second and the third
variety. Indeed, the notions of “absurd” and “reasonable” are variables of what
we understand by “logical rationality” and “axiological rationality”
However, as we have seen before, there are different notions of rationality at
play here. It also seems that they work in different fashions. Sometimes they are
even incompatible with each other.
There can be —as we have seen— a logical rationality, constituted by consis-
tency and completeness. However, as we have also seen, the notions of consisten-
cy and completeness in the legal domain are somehow different from the strictly
logical one. Consequently, rationality as a regulative ideal for legal interpretation
changes whenever the notion of rationality we presuppose changes. In particu-
lar, since consistency in the legal domain is sometimes different from mere log-
ical consistency, the ideal of a rational lawgiver as an interpretive tool aiming at
preventing conflicts between and among norms changes accordingly. This has a
bearing also on the notion of a logical implication between norms, since contra-
diction and implication are necessarily connected concepts. In particular, we can
understand a consistent system as one that do not imply any sentence only if we
subscribe to a traditional stance on the notion of contradiction. Since the notion
of contradiction handled by jurists is somehow “deviant”, one has difficulties in
delineating a corresponding notion of implication within the legal domain.
Things get even more complicated with reasons. If one holds the view that
reasons can conflict, one must concede that conflicts or reasons abound in the
law. This is not necessarily irrational, in so far such reasons can be put in a hierar-
chical order (something which is logically debatable, though, as we mentioned).
Apart from this, we should stress again here that appeals to reasons in legal in-
terpretation are often used to create antinomies within rules or to defeat a certain
rule. Whenever a rule is defeated by a reason or by another rule introduced in
light of a reason, there is a clash between first-order and second-order rational-
ity: in such cases, these two ideals pull towards different directions. In other
words, first-order consistency and second-order coherence trigger different in-
terpretive products. Oppositely, we can also say that whenever a rule resists to
the “defeating force” of one or more reasons, the clash between first-order and
second-order rationality again take place.

40 
Dworkin 1986. On Dworkin, see Alchourrón 2010: 172 ff.
41 
Indeed, as Capone (2016: 153) observes, the rational lawmaker is usually characterized by three
sets of properties: a) he cannot be self-contradictory, so that we must interpret his provisions in such
a way so as to avoid contradiction, b) he is a rational agent, who has good reasons for his decisions,
c) The good reasons in question fulfill certain formal criteria: e. g. no good reasons can be inconsistent
or incoherent; the decisions are reached through the application of valid rules of legal reasoning.

98
 Rational Law-Giving: Structural and Interpretive Queries

More in general, we can affirm that first-order rationality (consistency and

completeness) works mainly as a “negative” interpretive tool, aiming at prevent-
ing interpretations that bring about systematic defects, whereas second-order
rationality functions as a “positive” tool aiming at picking up the “best” inter-
pretation between many possible interpretations  42. Again, there is no guarantee
that the “best” interpretation triggered by second-order rationality is satisfactory
in terms of first-order rationality. Moreover, we should point to the fact that co-
herence is a powerful mechanism to spot axiological gaps in the law, where by
“axiological gap” I mean a situation in which a certain norm regulates a state of
affairs in a way which is regarded as suboptimal or unsatisfactory. So, in many
cases there is a clash between the layers of rationality that are held to guide the
task of the legal interpreter. If this is clash is solved or at least limited, it is be-
cause of jurists’ systematizing intervention.
Indeed, the systematic character of law is often the product of jurists’ sys-
tematizing activities, rather than being a pre-existing datum. Rationality works
effectively as the manifold ideal we sketched whenever the product of jurists’
construction is a consistent, complete, and coherent set of norms.
However, rationality so understood is not grounding a “global activity” (as
Dworkin, for instance, would have it): it is not the legal order as a whole to be
systematized by jurists. The widespread idea that the rational lawmaker would
always choose legal rules which are the best suitable ones for implementing the
purposes he sets for the law must be balanced with what we have just observed:
first-order rationality and second-order rationality are different and often the
latter seems to presuppose the absence of the former (and vice versa). Moreover,
reasons or principles are often conflicting. Consequently, jurists are called to sys-
tematize a legal order piece by piece, norm by norm, by ordering principles (viz.
reasons) and evaluating the effects of such ordering on first-order rationality,
rather than embarking in an overarching task of harmonizing the legal materials
as a whole. In brief, the fact that the rational purposes set for the law —e. g. com-
pleteness, consistency, and coherence— cannot always be reached altogether is
a great limitation to the idea of rational lawmaking regarded as an ideal guiding
legal interpretation.

References

Alchourrón, C. E. (1986). Systematization and Change in the Science of Law, «Rechtstheo-

rie», Beiheft 10, 171-184.
— (2010). Fundamentos para una teoría general de los deberes, Madrid, Marcial Pons.
Alchourrón, C. E., Bulygin, E. (1971). Normative Systems, Wien, Springer.
Bateson, G., Jackson, D. D., Haley, J., Weakland, J. (1956). Toward a Theory of Schizo-
phrenia, «Behavioral Science», 1, 251-264.

42 
Alchourrón 1986, 2010: 172 ff.

99
 Giovanni Battista Ratti

Bobbio, N. (1950). Scienza del diritto e analisi del linguaggio, «Rivista trimestrale di diritto
e procedura civile», 2, 342-67.
— (1971). Le bon législateur, «Logique et Analyse», XIV, 243-249.
Bouvier, H. (2004). Reglas y razones subyacentes, «Doxa. Cuadernos de Filosofía del De-
recho», 27, 393-424.
Bulygin, E. (2015). Essays in Legal Philosophy, Oxford, Oxford University Press.
Capone, A. (2016). The Role of Pragmatics in (Re)Constructing the Rational Law-Maker,
in Capone, A., Poggi, F. (eds.), «Pragmatics and Law. Philosophical Perspectives»,
Dordrecht, Springer, 141-157.
Celano, B. (2013). Law as Power: Two Rule of Law Requirements, in Sciaraffa, S.,
Waluchow, W. (eds.), «Philosophical Foundations of the Nature of Law», Oxford,
Oxford University Press, 129-151.
Dworkin, R. (1986). Law’s Empire, London, Fontana.
Ferrajoli, L. (2007). Principia Iuris, Bari, Laterza.
Guastini, R. (2008). Algunos aspectos de la metateoría de Principia Iuris, «Doxa. Cuader-
nos de Filosofía del Derecho», 253-260.
— (2011). Interpretare e argomentare, Milano, Giuffrè.
— (2013). Juristenrecht: Inventing Rights, Wrongs, and Powers, in Ferrer Beltrán, J.,
Moreso, J. J., Papayannis, D. M. (eds.), Neutrality and Theory of Law, Dordrecht,
Springer, 147-159.
— (2014). La sintassi del diritto, Torino, Giappichelli, II ed.
MacCormick, D. N. (1984). Coherence in Legal Justification, in Peczenik, A. et al. (eds.)
Theory of Legal Science, Dordrecht, Reidel, 235-251.
Maranhão, J. S. A. (2002). Von Wright’s Sceptical Turn on the Logic of Norms and the
Problem of Gaps in Normative Systems, «ARSP», 88, 216-229.
Marmor, A. (2011). Philosophy of Law, Princeton, Princeton University Press.
Mazzarese, T. (2000). Permesso forte e permesso debole: note a margine, «Analisi e diritto
2000», 113-131.
Nowak, L. (1969), De la rationalité du législateur comme élément de l’interprétation juri-
dique, «Logique et analyse», 12, 65-86.
Pepe, G. (2015). Necessità di un’adeguata motivazione della legge restrittivamente inci-
dente nella sfera giuridica dei cittadini? Commento a sentenza Corte cost. n. 70/2015,
«Quaderni costituzionali», 1-15.
Ratti, G. B. (2015). An Analysis of Some Juristic Techniques for Handling Systematic De-
fects in the Law, in Bustamante, T., Dahlman, C. (eds.), Argument Types and Fallacies
in Legal Reasoning, Dordrecht, Springer, 151-177.
Ross, A. (1968). Directives and Norms, London, Routledge.
Schauer, F. (1991). Playing by the Rules A Philosophical Examination of Rule-Based Deci-
sion-Making in Law and in Life, Oxford, Clarendon Press.
— (2009). Thinking like a Lawyer, Cambridge (Mass.), Harvard University Press.
Tarello, G. (1957). Sul problema della crisi del diritto, Torino, Giappichelli.
— (1980). L’interpretazione della legge, Milano, Giuffrè.
Von Wright, G. H. (1991). Is There a Logic of Norms?, «Ratio Juris», 4, 265-283.
— (1999). Deontic Logic: A Personal View, «Ratio Juris», 12, 26-38.

100