Ratio Juris. Vol. 5 No.

3 December 1992 (269-87)

copyright 0Manuel Atienza 1992

Practical Reason and Legislation

MANUEL ATIENZA

Abstract. The author‘s starting point is Bobbio’s theoretical approach to the problems
of the relations between law and reason. He then appraises the meanings of reason
and the concept of theoretical and practical rationality in the application of law.
He examines the complex problem of the rationality of legislation and distinguishes
five levels of rationality.

1. In his short opening paper at the 1984 Congress Reason in Law which took
place in Bologna, Norbert0 Bobbio (1985) offered - with characteristic mas-
tery and elegance (cfr. Pattaro 1985) - a theoretical framework for dealing
with the extremely vast and complex problem of the relationships between
law and reason. The question I must deal with here - practical reason and
legislation - is probably no less complex, but it is less vast; in a way, it could
be said that the relationship between them is that which exists between the
genus (reason, law) and the species (practical reason, legislation). For that
reason, and also because it can do nobody any harm to have some light
shed on an area where the tendency towards obscurity is virtually habitual
- and probably not even always blameworthy - , I will use Bobbio’s paper
as a starting point for my exposition. His thesis can be summed up in three
basic points.
The first is that, in Bobbio’s opinion, posing the problem of the relation-
ships between law and reason takes on a different meaning, depending on
whether the first or the second of these terms is seen as a substantive. Thus,
when we speak of a ”law of reason” or of ”rational law, ” the term ”reason”
(which here appears as a complement and not as a substantive) is used in the
strong sense, as man’s special faculty (the rational animal man of classical
tradition) of grasping the essence of things, or - to use a formula loved by
jurists, who always use it without ever explaining what they mean exactly -
the ”nature of things,” the faculty of establishing the necessary connections
between the parts of a whole “and of thus obtaining the absolutely binding
laws of conduct’’ (Bobbio 1985, 18). On the other hand, in the expression
270 Manuel Atienza

"legal reason," "the same term ('reason,' which now appears as a substan-
tive) has been used mainly in the weak sense of the capacity to reason in all
the ways in which we speak of reasoning, as inference, as calculation, as
argumentation, etc." (ibid.). In the first case, the fundamental problem that
must be posed is whether rational law exists or not; in the second, the
question is not whether legal reasoning exists or not (nobody seems to have
cast doubt on this), but rather what its characteristicsare, that is to say, what
makes it different from other types of reasoning, such as that which takes
place in ethics, in the practical sphere in general or in science.
The second point is that these two meanings of "reason" (Bobbioalso calls
the first "substantial reason" and the second "formal reason") can be
made to correspond to the time of the creation and the application of law
respectively: "Strong reason is that which creates, discovers or reveals -
according to the different points of view of rational law - law, that is, the
rules which rational man must keep to, and it is not limited to showing them,
but it also poses, proposes or imposes them (in the tradition of ethical
rationalism, reason in general is not only theoretical but also practical); weak
reason is that which, once the rules have been established - and it does not
matter whether they have been posed by reason or by a superior will -,
applies them to the particular case, and in order to do so it makes use of the
procedures described or regulated by logic, by the topic, by all the disciplines
whose object is the mental operations that can be put into the concept of
reasoning" (Bobbio 1985, 19).
And finally, the third point - of the historical kind - is that the first of these
problems, that of rational law, "has almost completely been abandoned
today, even though it was for two thousand years the main question in the
philosophy of law and constituted the main object of debate from the time
of the Greeks up to Kant (. . .) Today the expression 'reason in law' conjures
up essentially the second meaning - I would almost say exclusively -,
I think this is because of the influence of writers of the Anglosaxon linguistic
area, that is, it suggests the question of legal reasoning" (p. 21). This
complete change of paradigm in legal thought came about at the end of the
18th century and the beginning of the 19th and has to do with the appearance
of positivism and legal historicism. Bobbio considers that the only thing that
the different traditions of rational law (or, to be more exact, of rational
natural law) have positively in common is that "they have understood
reason as the maximum organ of man's knowledge, the organ of a know-
ledge which (. , .) allows man to reach an undeniable truth" (Bobbio 1985,
23), while that function has been interpreted in different ways. However, it
is easier to characterise rational law negatively: It is contrasted to the con-
ception of law as the product of revelation; of will (whether it be superior,
God's will, the prince's or the people's); of history or experience; and of
the passions.
 Practical Reason and Legislation 271

Really, the three observations made by Bobbio: (1)There are two funda-
mental ways of understanding reason in law, as strong reason and as weak
reason; (2)strong reason is the one that legislates and weak reason is the one
that judges or applies the law; (3) contemporary legal thought, since the
beginning of the 19th century, has reduced reason in law to its weak sense
which is the one that is seen in the application of law; seem to me to be open
to some variations and, in a way, this is what I propose to do in the following
part of this paper. To do so, I will try to answer the following three questions
which, in my opinion, are also the three main problems left open by Bobbio’s
exposition: 1) What can be understood by rationality in general and by
practical rationality or practical reason in particular? Is it right to distinguish
between strong or substantial reason on the one hand, and weak or formal
reason on the other? 2) How is the former to be applied in the field of legis-
lation? Is it true that the idea of legislative reason arises from a declining
model of legal thought? 3) How are rationality in legislation and rationality
in the application of law related? Is it a case of different notions of rationality
or of different uses of the same notion?

2. The concept of rationality is clearly one of the central concepts of philo-

sophy and possibly even the central concept. This means that clarifying it
presents formidable difficulties, for practically all the great philosophical
problems come together here. To realise this, we only have to remember that
almost all the great clashes in the history of thought can be viewed from the
perspective of rationality. Thus, on the one hand, reason - as we have seen
- clashes with faith, will, historical experience or passions. On the other,
within reason itself, formal reason clashes with material reason, theoretical
reason with practical reason, subjective reason with objective reason, descrip-
tive reason with normative reason, individual reason with social reason,
analytical reason with dialectical reason, instrumental reason with axiological
reason, scientific reason with technical reason, etc. Moreover, these clashes
are not - or at least not always or not in all cases - a simple question of
concept or classification, but rather they have frequently been used as a
criterion for demarcation. Whatever falls outside the field of reason, or of
reason understood in a certain manner, is what is not worth bothering about,
what cannot be talked about meaningfully etc. Furthermore, we usually use
the predicate “rational” to refer to very different things. Propositions can be
rational, as can agents (individual or collective), beliefs, opinions, decisions,
actions, and perhaps also ends, values, norms, institutions . . . In short, the
concept of rationality is not only an extraordinarily rich concept - and,
therefore, inevitably ambiguous -, but it is also enormously disputed; so
disputed that it cannot even be said that there is agreement when it comes to
considering that rationality - whatever it is - is something valuable; nor, of
course, when it comes to contrasting what is rational with what is emotional
or volitional; or to characterising rationality as a capacity unique to humans;
or even as a capacity itself, for sometimes it is stressed that it is more a
272 Manuel Atienza

question of method (Mosterin 1978) (whose practice certainly presupposes

some kind of capacity). So it is not surprising that Hans Lenk (1988), after
reviewing - with no claim to being exhaustive - more than 20 different
meanings of rationality, should consider it “doubtful that a wide unitary
concept of rationality could cover all the meanings” (Lenk 1988, 115).
Now then, independently of whether an all-embracing concept is a
possible task, it does not appear to me the most promising way of clarifying
the notion of rationality, at least for the purpose that interests us here. By this
I do not mean to say that it is sufficient to start off from some simple contrast
(simple in the sense that it leaves out many other meanings of the concept),
like the one suggested by Bobbio when he distinguished weak, formal or
instrumental reason, on the one hand, from strong, substantial or final
reason on the other. In my opinion, what is needed is not so much a general
and complete theory of rationality (something which, of course, greatly
exceeds my possibilities and probably also the framework of this paper), but
rather a structured conception of rationality (in a similar sense to when we
speak of the structured theory of crime) which, among other things, allows
us to connect (and not only separate) these two senses or types of rationality
to which I have just referred. In short, it involves articulating different levels
of rationality, which means not only distinguishing different senses or types
of rationality from each other, but also ordering them in some way.
Within this structure, probably the most basic level is occupied by logical-
formal rationality. Here, rationality is essentially the predicate of statements
or propositions or, rather, of passing from some propositions to others, that
is to say, inference. Deduction - or calculation - are undeniably rational
operations, but they do not exhaust the field of rationality. In order to realise
this, it might be useful to check how this level of rationality works in the
context of the application of law. We almost all agree that a legal decision is
not justified - because it is irrational - if it does not have a deductive form or,
as is usually said today, if it lacks internal justification. However, the use of
deductive logic as a mechanism of rational control leaves open, here at least,
the following problems: (1)It says nothing about how to establish the
premises, that is to say, it starts from them as something already given; ( 2 )
nor does it strictly speaking say anything about how to go from the premises
to the conclusion, rather it only gives criteria about whether a particular step
is authorised or not; shall we say, it does not have a heuristic value, but one
of proof, it does not work in the context of discovery but in that of
justification; (3) it is doubtful - or at least it has often been doubted - that a
nornative inference is possible, that is, an inference in which at least one of
the premises and the conclusion are norms, as occurs with legal syllogism
(or, in general, with practical normative syllogism); (4) it only provides
formal criteria for correction: A judge who uses as premises, on the one
hand, a manifestly invalid norm and, on the other, an account of the facts
that clashes head-on with reality, would not be committing an outrage
 Practical Reason and Legislation 273

against logic; (5)it does not consider as valid arguments those hypotheses in
which the step from the premises to the conclusion is not necessary,
although it may be highly plausible; (6) nor does it allow the use of what is
probably the most typical method of argumentation in law (and outside law):
analogy; (7) it does not determine, in the best of cases, the decision as such
(for example, "I condemn X to punishment Y"), but rather the normative
statement which is the conclusion of the legal syllogism ("I must condemn
X to punishment Y"): A statement like "I must condemnX to punishment Y,
but I do not condemn him" would not represent a logical contradiction.
Naturally, the fact that this notion of rationality is limited is not a defect in
itself. The problem lies in that quite often attempts have been made to make
it the centre - and not just the basis - of rationality. In accordance with what
Brown (1990) calls the classical model of rationality prevailing in Western
thought, solving a problem rationally would mean reaching a result that can
be universal (anyone starting out from the facts of the problem must reach the
same solution), and in a necessary manner and as a result of following certain
rules which are moreover algorithms, that is to say, when they are applied to
a problem they guarantee a solution in a finite number of steps. It would thus
be a generalisation - an undue generalisation - starting from the operations
of deduction and calculation. Such a conception of rationality would oblige
us to qualify as non-rational (though not necessarily irrational) many of the
activities that we usually consider to be rational and even the paradigm of
rationality; among others would be some fundamental aspects of scientific
activity, including formal logic itself or mathematics. The capacity for solving
problems of deduction or calculation goes far beyond what is suggested by
this model of rationality. Being rational means, above all, being able to
confront brand new problems, that is to say, problems that cannot be solved
simply by applying pre-established norms.
In my opinion, the previous considerations allow us to reach two con-
clusions. The first is that we need to widen - if you wish, weaken - the
concept of inference of classical deductive logic: Arguing - arguing ration-
ally, that is to say, passing with good reasons from some propositions to
others - is not the same as - or is not just - deducing. The second conclusion
is that logic - or the theory of argumentation - at all events moves in the field
of discourse, but rationality is a capacity - or a method - which should allow
us to solve or confront problems which go beyond discourse. If we need
rationality it is basically in order to be able to confront problems to do with
understanding the world (problems of knowledge) and how to act in it
(practical problems). Now then, in any cognitive or practical problem a
logical dimension is involved - an argumentative dimension - so it can be
said that logical rationality is the most basic level of rationality and it is of an
instrumental nature in relation to theoretical rationality and practical
rationality.
274 Manuel Atienza

The aforesaid also implies accepting - as is usually done - that rationality

is the predicate essentially, on the one hand, of beliefs and opinions and, on
the other, of decisions and actions. Scientific knowledge is the most perfect
type of theoretical rationality, but beliefs and opinions can be rational even
if they are not scientific. Of course, this does not mean that any belief is
rational either. Theoretical rationality - rationality in general - necessarily
involves an element of objectivity, in the sense that it is not enough that an
individual should believe in something for that belief to be rational; apart
from this he must be able to adduce reasons in favour of this belief, and they
must be of a certain quality: They must not contradict the individual’s other
beliefs, they must be compatible - coherent - with the knowledge accumu-
lated in the field in question and with the information available about the
problem, etc. In any case, rational beliefs and opinions - including scientific
theories - do not need to be true, although they attempt to be; and, on the
other hand, a belief may be true even though the individual sustains it in
an irrational way. Certainly that does not prove that we cannot speak of
substantial or material rationality, although it does prove that it is quite an
ambiguous notion.
As has been said, theoretical rationality presupposes logical rationality
and, at the same time, it is the presupposition for practical rationality. That
means that acting rationally supposes doing so on the basis of rational beliefs
(cf. Mosterin 1978; Quintanilla 1981; Bunge 1988) which, indeed, is not a
trivial thesis at all. If this requirement is accepted, then the theory of the
“rational” decision, which is the prevailing model of practical rationality
these days, would not be a completely rational theory, as it starts out from
the subjective beliefs (and desires) of the agent which are not essentially
submitted to any kind of criticism (Bunge 1988,24; Hoffe 1988,156).Practical
rationality, on the other hand, may be understood in a simply technical-
instrumental sense (which forms a notion of rationality that is not debatable
as such, although it may be interpreted in different ways) or as ethical reason
or reason of ends (which forms a stronger - and more polemical - notion of
rationality).
In the first sense, acting rationally means adopting the most suitable
means to reach the proposed ends. This teleological type of structure appears
both in purely instrumental rationality and in strategic rationality, that is,
rationality in contexts of interaction, which presupposes the former. In a
similar way to what happens with theoretical or cognitive rationality, here
too it can be said that an action may be rational even though it is not suc-
cessful in attaining the pursued end, and that the pursued end may be
attained in a completely irrational manner. This notion of rationality can of
course also be applied in relation to norms and particularly to legal norms:
both with regard to establishing them and also to following or applying
them. Thus, it is meaningful to say that an agent acted rationally on es-
tablishing a norm if it can be seen effectively as a suitable means for
 Practical Reason and Legislation 275

reaching the end he pursued; that someone acts rationally when he follows
a norm, because he has good reason to believe that not to do so would bring
about a sanction (and he wishes to avoid the sanction); or that on applying
a norm a judge acts rationally if what he pursues is, for example, that his
decisions should not be revoked by higher legal bodies and he in fact uses the
suitable means to reach this objective (following the criteria established by
c
appelate courts).
Now then, this notion - or level - of rationality is clearly limited in charac-
ter, as it refuses to pose the question of the rationality of the ends. Or rather,
for those who operate in the context of technical-instrumental rationality,
the rationality of the ends could only be spoken of if those ends were in turn
means for other ends or with regard to the question of whether the final ends
form a consistent whole; but final ends are not as such an issue of reason.
This characterisation of reason is the one that appears provocatively
summed up in these two famous phrases of Hume, who is rightly considered
to be its main mentor: “Reason is, and can only be, the slave of the
passions”; “it is not contrary to reason for me to prefer the destruction of the
whole world to a scratch on my finger” (cf. a comment on both phrases in
Audi 1989).
We can only speak of practical reasons in a strong or strict sense if the latter
assumption is denied, that is to say, if we accept that the final ends can also
be the object of deliberation and rational debate, and do not simply figure as
premises in practical reasonings. By this I wish to say that accepting that in
law - in the justification of legal decisions - there are as many goal reasons
as rightness reasons (that is, reasons that do not refer to ulterior ends and
which, therefore, operate as final reasons) is not the same as sustaining a
conception of practical rationality in the strict sense to which I am referring.
After all, reconciling Hume with Kant - as MacCormick (1978)tried to in his
theory of legal argumentation - could well be an example of an impossible,
that is to say, contradictory objective. Nor is it - from the ethical side - a case
of this notion of rationality if - like Gauthier (1986)- morality is understood
as an extension of prudential or instrumental rationality in contexts of
strategic interaction; the principle of maximisation cannot be the supreme
criterion of practical rationality, even if it is a restricted maximisation.
Moreover, sustaining the practical (practical-moral and not only practical-
technical) nature of reason does not of course imply ignoring that rationality
also has its limits. It can objectively justify final norms and values, but it
cannot do so in an absolute and indisputable manner, which was the claim
of the natural law writers recalled by Bobbio.
In my opinion, the most plausible conception of practical rationality is the
discursive conception, along the lines developed by Habermas and Alexy,
which I in essence endorse. Referring particularly to Alexy’s thesis, his
reconstruction of the rules and forms thzt govern general practical rational
discourse seems to be convincing to me, although I do have a few doubts
276 Manuel Atienza

about whether it is fitting to characterise legal discourse (a concept which,

on the other hand, I feel is not always well delimited in his work) as a special
case of practical rational discourse. The statement of Habermas - who,
according to his own testimony, was convinced of this by Alexy - that "legal
argumentation, in all its institutional coinings, must be understood as a
special case of practical discourse" (Habermas 1987, 1:60) (that is rational
practical discourse, in the sense in which the latter expression is used in the
context of this theory, and which presupposes a situation of equality
between the participants in the same and the total absence of coercion -
outside or within the discourse), seems to me not only to be false, but also
dangerous. In my opinion the danger lies in the theory of discourse being
used not as a critical instance for judging positive law, but rather as a model
for the reconstruction and justification of a certain type of law. Now then, it
is one thing that the existence of law as such may be presented as a demand
of practical reason - something I agree with - ,and it is a quite different thing
to suppose that we live (in constitutional democratic states) "in the best of
all imaginable legal worlds" (Tugendhat 1980, 4), and not just in the best
of the legal worlds that in fact exist. Moreover, I consider that practical
rationality - and probably rationality in general - must be characterised in
procedural terms rather than substantial ones; as a process of dialogue not
monologue; carried out by men in the conditions of their real existence and
not by an impartial spectator or by the representatives of a hypothetical
original situation; and in the procedure objectivity is defined by the capacity
to reach a consensus in conditions of freedom and equality which are already
presupposed in the ordinary use of language itself. Thus understood,
practical rationality is of a limited nature, as it does not pretend to make
absolute judgements on final ends, but only judgements that claim to be ob-
jectively valid; it presupposes the former levels of rationality, and therefore
its judgements are in fact final but not irrevocable; in this rationality the
critical - negative - dimension predominates over the constructive one:
Practical reason is apparent, above all, in the capacity to say no to the pursual
of certain ends and the use of certain means (Muguerza 1977,1990).

3. Now let us see how we can answer the second of the questions posed at
the beginning. The problem of the rationality of legislation may be
understood in at least three different ways. On the one hand, the rationality
may refer to the legislation as such, which implies raising the question of
what place it occupies - what part it plays - in the context of the whole legal
system and with regard to the other elements of the system - particularly
with regard to jurisdiction; or what its function is in the context of the
evolution of legal systems. In the well-known Weberian model (not
historical but rather ideal-typical) of the development of law and of legal
culture, legislation - particularly codifications - is obviously linked to the
type of rational-formallaw which represents the highest phase in the process
 Practical Reason and Legislation 277

of progressive rationalisation of Western society. On the other hand,

legislative rationality may be understood with reference to the process of the
production of laws; then the question to be posed is under what conditions
- or how far - the activity of lawmaking can be considered to be rational
(by this we understand, in the wide sense, the deliberate production of
norms of a preferably general and abstract kind). Finally, we may also talk of
rationality with regard to the result of this process, that is to say, the
rationality of the laws enacted. In the following lines, I will deal essentially
with the rationality of legislation, as it is understood in the second of the
senses mentioned; and I say "essentially" because the rationality of
lawmaking presupposes the rationality of the institution as such and
determines - at least to some extent - the rationality of its products, the
laws. There are times when it may make sense to say that a law is rational
even though its production process was not (for example, when the law
solves some social problem, even though it was issued ignoring essential -
and known - facts about the situation), but that is rather exceptional. The
reverse is, unfortunately, more plausible: In spite of having legislated
rationally, the law may leave things even worse than they were before.
Understood in this way, legislative rationality is nothing but a particularly
complex aspect of practical rationality in general.
The process of lawmaking may be seen as a series of interactions that take
place between different elements: the issuers, the addressees, the legal
system, the ends and the values. From a very abstract point of view, it can be
said that the issuers are the authors of the norms; the addressees are those
at whom the norms are directed; the legal system is the whole of which the
new law forms part; the ends are the aims or goals (understood in the widest
sense) which are pursued on establishing the laws; and the values are the
ideas that serve to justify the said ends. Starting out from here, different
levels of rationality can be distinguished which are thus defined from the
same elements, although they are understood in different ways. The levels
are, in turn, ordered in the following way: In each level the values act as final
ends and thus provide the criteria for solving possible conflictsbetween ends
of the same level; on the other hand, each level of rationality is hierarchically
superior to the one before, in the sense that the conflicts between levels of
rationality must be resolved giving priority to the higher levels; finally, the
first four levels correspond to a single notion of rationality (as instrumental-
strategic rationality), while the fifth, ethical rationality, is of a different type:
Here, as has been said, it is not so much a question of seeing what means are
suitable for certain ends, but rather what ends (and what means) are (and are
not) ethically justifiable.
Thus, these five levels of rationality appear: a linguistic rationality (Rl),
inasmuch as the transmitter (issuer) must be able to fluidly transmit a mes-
sage (the law) to the receiver (addressee); a legal-formal rationality (R2),
as the new law must be harmoniously inserted in a particular legal system;
278 Manuel Afienza

a pragmatic rationality (R3), as the conduct of the addressees would have to

adapt to what is prescribed in the law; a teleological rationality (R4),as the
law would have to attain the social ends pursued; and an ethical rationality
(R5), as the conducts prescribed and the ends of the laws presuppose values,
which would have to be open to ethical justification. The following table will
surely give an idea of all this as a whole:

Table 1.

Issuers Addressees Legal system Ends Values

R1 transmitter receivers of the set of statements clarity, precision communi-

(legal) message (messages) and cation
of channels to
transmit them

R2 organwith individuals and set of validly systematic nature; security;

capacity to bodies at which established fullness, foreseeable
produce laws are norms (in the coherence quality
legislated law directed wide sense)

R3 organ to which burocracy and set of efficient enforcement of maintaining

obedience is individuals who norms law (translation of order;
owed owe obedience (or conducts) norms into efficacy
(subjects) actions)
~ ~~ ~~ ~~

R4 bearers of social people affected set of means to fulfilment of social social

interests by the attain social objectives: redistri- efficiency
(individuals, regulation of ends bution of wealth,
pressure social interest increaseor deaease
groups, etc.) or needs of social protection,
reduction of unem-
ployment, main-
taining political,
economic advan-
tages, etc.

R5 legitimate people morally set of ethically freedom, equality, nature,

authority obliged to obey assessable justice human
laws norms, actions dignity,
and institutions consensus,
etc.

At the R1 level of rationality, the issuer and the addressee of the laws are seen
respectively as transmitters and receivers of a certain kind of information
that is organised in a system (the legal system is seen as an information
system). For that reason, the issuer here is not so much (or not only) the
formal issuer (for example, the parliament), but rather, above all, the writer
of the message (the draftsman). The legal system will consist of a series of
 Practical Reason and Legislation 279

linguistic statements organised from a code which is common to the

transmitter and the receiver (a language) and from the channels that assure
the transmission of the messages (the laws). The addressee of the informa-
tion may not be (or may not basically be) the formal addressee of the norm.
In other words, the law may not be clear to those who have to fulfil the
mandates contained therein (for example, in the case of a tax law), without
this meaning that the law is linguistically defective (it would be enough, for
example, for it to be clear to financial advisors, tax inspectors, etc.). The ends
of lawmaking in R 1 are the accessibility, clarity and precision of the norma-
tive messages. The value underlying such. ends is communication which,
as has been said, is in turn subordinated to the values of the higher levels:
Undoubtedly, a law that obscurely restricts political freedom may be prefer-
able (or be less unvaluable) than one that does the same in an unequivocal
way. At level R 1 it can be said that a law is irrational (or not completely
rational) if and inasmuch as it fails as an act of communication. Rationality in
lawmaking is thus measured by the degree of adoption of the necessary
means to avoid syntactic defects or semantic obscurity, by the use of suitable
channels to transmit the message (official publications or the media), etc.
Acting rationally thus implies doing so by using knowledge from disciplines
like linguistics, logic, computer studies or psychology (I am thinking above
all of cognitive psychology).
At the level of legal-formal rationality (R2), the issuer and addressee of the
laws are the bodies and individuals designated as such by legal order. Here
the legal system is understood precisely as a group of validly established and
structured norms in a system (the traditional notion of legal order). And the
aim of lawmaking is a systematic quality seen as the adequacy of the form
and the structure of the laws - perhaps we could say a syntactic systematic
quality - or the compatibility of the new law with the wider set of laws of
which it forms part, so as to avoid contradictions, gaps and superfluity. This
means that law can be seen - and justified - as a mechanism of foreseeing
human conduct and its (normative) consequences, that is as a security
system. In level R2, lawmaking is rational if and inasmuch as it does not
erode the structure of legal order. This may occur either because the pro-
duction of the new law has not respected the criteria established by the legal
order of which it is to form part, or because, even if it does respect such
criteria, it introduces criteria foreign to the “logic” (the principles) of the
order, it negatively affects established law (a problem of derogations and
remissions), etc. What is sometimes called legislative technique in the strict
sense operates basically in this second level of rationality which, as has been
seen, presupposes the first. The fulfilment of this type of rationality is closely
linked to the use of traditional legal knowledge, of legal dogmatics, although
its techniques must be adapted to this new context of producing norms -
dogmatics has traditionally worked in the interpretation and application
of law - and it must be completed with a wide use of comparative law, the
280 Manuel Atienza

general theory of law and legal logic. On the other hand, from the practical
and organisational point of view, the measures to be taken will involve
adopting legislative guidelines and establishing technical offices in parlia-
ments, ministries, etc. to guarantee they are applied.
Pragmatic rationality (R3) consists, in principle, of adapting the addressees'
conduct to what is prescribed in the law. Here the issuer is the political
sovereign, this being understood as whoever has the power to be obeyed
(and not only to issue formally valid norms). The addressees are those who
owe (active or passive) obedience; thus, they are those to whom the law is
directed, inasmuch as they adapt (or do not adapt) their behaviour to what
is prescribed therein. The legal system is seen as a set of efficient norms or,
if you wish, as a set of acts, of conducts. The aim is that the laws should be
enforced, that is to say, that they should not just be linguistic statements
or guidelines, but "law in action". The underlying value here is efficacy,
maintaining order. Now then, on occasions a law may be issued which is not
to be enforced (the symbolic use of law); in this case, legislative rationality is
not measured - in this level - exactly by the enforcement of what is provided
in the norms, but rather by the adaptation of the addressees' behaviour to
the legislator's intentions. In general terms, it can be said that attaining this
type of rationality implies providing suitable means to avoid the laws being
inefficient, which may be due to subjective factors (the lack of motivation on
the side of the addressees which could be fought using suitable sanctions -
both positive and negative) or objective ones (the lack of financial or
administrative cover, etc.). The techniques for reducing irrationality - or for
promoting rationality - at level R3 would have to come from disciplines like
political science, social psychology, the sociology of law, administrative
science or the theories of implementation.
At teleological rationality level R4, the issuers are the bearers of individual
or general social interests who manage to have them translated into laws.
The addressees of the laws are not solely the individuals or administrative
bodies at whom the legal dispositions are directed, but they may also be
individuals or groups that are not implied in the enforcement of the norm.
For example, hospital patients may also be considered to be addressees of a
health law (whose aim is to improve their situation as patients), even though
the said law does not give them any kind of right or obligation (for example,
a law which gives financial resources to hospitals). The legal system is seen
as a means for reaching social ends; thus, it is not from the jurist's (ox the
traditional jurist's) viewpoint, but rather from that of the social scientist or
technician. Here the aim could be the distribution of wealth, the increase or
decrease of social protection, the reduction of unemployment, maintaining
political or economic advantages, etc.
The value that governs attaining such ends is efficiency: maximising the
desired social effects and minimising the undesirable ones. This is an
especially complex level of rationality, because on top of the difficulties of
 Practical Reason and Legislation 281

determining the intentions or wishes of the issuer (particularly in the case of

a collective body), there are the additional problems of how to establish
whether the effects are produced as a consequence of the law (of its
enforcement or non-enforcement) or whether they have other causes; the
problem of where to cut the causal chain; etc. To simplify things, it could be
said that lawmaking is, at this level, rational if and inasmuch as the suitable
means are used to avoid the law not having appreciable effects and,
therefore, only adding to legislative contamination, or to avoid it not having
the desired effects, independently of whether these have been declared or
not or even foreseen. There may be social situations in which rationality
requires deregulation, or the introduction of mechanisms of self-regulation
(Teubner 1985).When this is not so - and on most occasionsit is not - we will
have to turn to knowledge from social sciences, like the sociology of
organisations, the economic analysis of law, the sociology of law, the
theories of implementation, etc.; in other words, we must proceed to a
legislative evaluation, by which we understand, in the widest sense of the
expression, the set of techniques aimed at the empiricalanalysis of the effects
of the legislation (Mader 1985).
Finally, at the level of ethical rationality (R5), the issuers are seen from
the point of view of those who are legitimised, and under what circum-
stances, to wield normative power over others. The essential problem of the
addressees, therefore, is when does an ethical obligation to obey - or dis-
obey - the laws exist? The legal system is seen here as a set of norms or con-
ducts to be evaluated according to a certain ethical system. The ends which
are considered to be valuable would naturally vary according to the ethical
system which is taken as a reference although, abstractly, it can be said that
they are freedom, equality and justice. Finally, the ethical values (it may be
said that there is a kind of reflexive equilibrium between the ends and the
values) are the ideas (organised in ethical theories) which allow such ends to
be justified (nature in the case of Natural Law, human dignity in a Kantian
type of conception, happiness in the utilitarian theories, or consensus in
neocontractualism or in discursive ethics). As has been said before, this level
of rationality has a negative rather than constructive role. The legislation
may turn out to be irrational - immoral - due to the lack of legitimacy of the
issuers, of the ends or of the means established. But ethical rationality,
unlike the other levels of rationality, does not generate any specific legis-
lative technique: There is no procedure for obtaining freedom, equality and
justice through laws, outside the techniques generated by R1-R4. The only
"instrument" that ethics disposes of is moral discourse, but it is precisely an
instrument that would be distorted if it were used to attain ends (perlocu-
tionary ends) which go beyond the discourse itself.
It may be considered that the former makes up an internal type of analysis
of legislative rationality: From each of the levels of rationality, the elements
of lawmaking are seen in a particular way, with which to delimit a criterion
282 Manuel Afienza

of rationality and suggest a series of techniques to be used to increase

rationality. An external type of analysis could also be carried out where,
in turn, two phases could be distinguished. The first would take place from
a more static viewpoint, inasmuch as it would attempt to show how the
different levels of rationality R1-R5 are related to each other (but, we could
say, abstractly, dispensing with the real process of legislation). The notion of
legislative rationality, as we have seen, is considerably complex, as it
involves techniques and knowledge from very heterogeneous sources which
cannot easily be joined together. On the other hand, the different levels of
rationality sometimes pose contradictory requirements or, at least, ones that
are not easily reconciled. The following diagram may serve as an example of
what I mean when I refer to this type of analysis (and only with regard to
levels R3 and R4). It shows, among other things, how a situation to be
avoided (shall we say irrational, represented by a circle) from the point of
view of pragmatic rationality ((B) and (D)) does not necessarily lead to
situations that should be avoided from the point of view of teleological
rationality (which would be (5),(lo), (15) and (25)).

Norm
R3 Is it followed by Yes \NO
the addressees?
Is it (the enforcement/
non-enforcement)
desired by the issuer?
Why was it not
enforced?

R4 Does it have
appreciable effects?

Does it have declared

offWtS?

Foreseen by
the issuer?

Positive?

S = Subjective motives
O = Objective motives

The second phase of the external analysis would be of a dynamic kind, as it

would attempt to show how those notions of rationality can combine to
account for the real process of legislation. Obviously here it is not possible
 Practical Reason and Legislation 283

to go into detail about this, but the diagram below, which was made up
starting out from the models of No11 (1973), Wrbblewski (1979, 1987) and
Losano (1984), and taking into account the perspective which was adopted
before, will surely allow us to obtain an overall idea.
Table 2.

Phases PRELEGISLATIVE LEGISLATIVE POSTLEGISLATIVE

Beginning Posing a social legislative body A law comes into

problem :eives or poses force
moblem

Lntennediate Test of adequacy

operations on the following
dimensions
Determining I
obiectives
Linguistic
Systematic
and non-legal Pragmatic
means to attain Teleological
Ethical
Ethical

justification
of the objective means

End Proposal of a law is published Proposals to modify

legislative solution the law

Usable Scientific method;

knowledge objective knowledge itive guidelines; check- of legal norms;
and tech- available; criteria an1 sts; implementation implementation
niques for rules of practical xhniques; cost-benefit techniques; legal
controlling rational nalysis; drafting dogmatics; KOL
rationality argumentation xhniques; dogmatics research; checklists
nd theory of law

Levels of R4 and R5 1-R5 R2, R3 and R4

rationality
preferably
implied
284 Manuel At ienm

4. Now then, independently of the former considerations being more or less

correct, what seems indisputable is that in today’s legal culture, the problem
of the rationality of legislation is not only a question to be tackled, but it could
even be said that it is one of the most typical features. The interest in studies
on legislation is extremely recent as far as the continental law countries are
concerned - it only goes back a couple of decades - but the same cannot be
said of the common law culture which has known the figure of the draftsman
for over a century. In any case, the present boom of this type of study (for
which as yet no generally accepted expression has been coined) has
undoubtedly to do with the crisis of legislation which, in turn, is a feature of
the crisis of the welfare state and, more generally, the crisis of society and
civilisation at the end of this millenium. Now then, even if we accept that we
can speak of a legislatory reason (weak or strong, we could say, according to
whether the starting point is an exclusively technical-instrumental concep-
tion - which is the most frequent - or a wider conception, ethical or of ends,
of practical reason), are we really using the term “rationality” in the same
sense as we do when we refer to the rationality in law application?
The answer to this question, in my opinion, must be affirmative, although
it should not blur the distinction between legislation and jurisdiction, the
point of the production and that of the application of law.
The proof that it is in fact a question of a common notion of rationality is
that it would make sense if we transferred the former analysis to the context
of the application of law. Thus, for example, a legal decision is, in general, a
text where precision and clarity may be demanded (legal writing techniques
are, in principle, of application, both in the writing of laws and of contracts,
sentences, etc.). A basic demand of legal interpretation - inasmuch as it is an
operation prior to application - is the preservation of the systematic quality
of the order and, in fact, there does not seem to be much difference between
the techniques to use for filling in gaps or resolving contradictions, once
they arise, and those to be used to avoid them appearing (cf. Guastini 1985).
Legal sentences or administrative resolutions cannot be confused with the
way they are carried out, so here again efficacy is an objective to be pursued
(and it is at times extraordinarily difficult to achieve; for example, when the
Administration itself is responsible for carrying out sentences relating to
actions under administrative law), Obviously, efficiency cannot be an objec-
tive detached from the application of law and, as is known, an influential
trend of contemporary legal thought believes that the maximisation of
wealth is the key to understanding and evaluating the conduct of judges (at
least, common law judges (Posner 1990)). And finally, in the application of
law, ethical problems frequently arise and it would be false to attempt to
solve them by resorting exclusively to criteria such as the correct application
of the law in force, obedience to the legislator or economic efficiency; the
judge also needs to - and does - dispose of some conception of ethics, albeit
the crudest of the ethics of legalism or the most simple of the ethics of
activism.
 Practical Reason and Legislation 285

It even seems to me that from the former model of rationality it is possible

to reinterpret the usual ways of posing the clash between legislation and
jurisdiction. To begin with, if the existence of a legislature means some
”progress” in the development of law, it is because in societies of a certain
complexity, what has been called teleological rationality (R4)could not be
achieved with purely jurisdictional mechanisms; I believe that this is the
sense of Bentham‘s scathing phrase directed at English judges, whom he
accused of making common law “like a man makes rules for his dog.” And
that is in complete harmony with his opinion that what must rule lawmaking
is the principle of utility, while the principle that must guide the task of the
judges is legal certainty; that is, legislation finds its way in accordance with
teleological and ethical conceptions of rationality, while jurisdiction is based
on legal-formal rationality. In a way, the same idea can be found in Max
Weber when he considered that formal rationality (R2) is characteristic of
jurists and legal operators, while the legislator or whoever creates law
generally points towards a rationality with regard to the ends (R4) (cf.
Febbrajo 1981). Or in Luhmann (1972), when he points out that with the
positivisation of law (that is, the point in the evolution of law when the
norms come into force and are changed by decision, which implies that they
are no longer considered immutable) there is a functional differentiation
between the procedures for reacting normatively to unfulfilled expectations
(jurisdiction) and the procedures for learning (cognitive point) from the
unfulfilled expectations (legislation). One would thus be a normative
rationality or one that points towards the input (R2), while the other would
be a rationality of the consequences or one pointing towards the output (R4).
This difference of direction - which also entails differences of organis-
ation, institutions, etc. - is undoubtedly true, but it must be relativised in
different ways. In the first place because, as we have seen, the distinction lies
in a question of emphasis: Legislative rationality is not interested only in
teleological rationality, nor does the rationality in the application of law
respond exclusively to the normative or legal-formal model. Secondly, in
both cases ethical rationality acts as the final level of rationality; the levels of
instrumental rationality may be organised in a different way at the time of
legislation and that of application but, in any case, instrumental rationality
is subordinate to ethics. Finally, legislative rationality - or, at least, a certain
degree of legislative rationality - is a necessary presupposition in order to
speak of rationality in the application of law. Precisely one of the criticisms
that can be made about the aforementioned Alexy theory, that legal
discourse - the one carried out by the interpreter, the enforcer of law or the
legal scholar - is a special case of general practical discourse, is that it only
works if we presuppose the justice - the rationality - of established law
(Alexy 1989).
Finally, it seems to me that the notion of rationality should be the central
idea around which the diversity of legal knowledge and practice must turn.
Thus we would have, on the one hand, a series of legal techniques aimed at
286 Manuel Afienza

increasing the rationality of law and where we would differentiate -

although only as points in the same rationalisation process - the legislative
technique (or techniques) and the technique of interpreting and applying
law (legal dogmatics in the traditional sense). On the other hand, from here
on a theory of law would have to be developed to establish the conceptual
framework for those techniques. A theory which would offer a totalising
explanation of the legal phenomenon, which would therefore include both
the point of application and that of production of norms, and which would
allow us to connect legal culture and practice in general with all social
knowledge and practices. This requires starting out from a unitary,
structured and wide conception of rationality, which does not limit rational
behaviour to the activity of following pre-established norms, nor refuses to
pose the question of justification - the rationality - of the ends. In short, we
need what Bobbio called reason in the strong sense, both at the time of the
legislation and at that of the application of law, nor can we do without reason
in the weak sense in either of the two instances.
To end, all that is left for me to add is that I am perfectly aware that in
having followed the path marked out by Bobbio to deal with the question of
reason in law, I have probably not gone any further than he did; instead I
have chosen a path with too many shadows and very little light. I console
myself, however, when I think that there are some landscapes that are better
observed in a dim light; and the rationality of law could well be one of such
landscapes.

University of Alicanfe
Faculty of Law,
Carrefera de S . Vicente del Raspeig
Alican te
Spain

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