Revue Internationale de Philosophie

JUSTIFICATION OF LEGAL DECISIONS

Author(s): Jerzy WRÓBLEWSKI
Source: Revue Internationale de Philosophie, Vol. 33, No. 127/128, LA NOUVELLE RHÉTORIQUE
THE NEW RHETORIC: Essais en hommage à Chaïm Perelman (1979), pp. 277-293
Published by: Revue Internationale de Philosophie
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 JUSTIFICATION OF LEGAL DECISIONS

Jerzy WRÖBLEWSKI

1. "Legal decision" in the present essay denotes three types of

decisions : decisions of law-making, interpretative decisions and
decisions of application of law.
The scope of the present essay is to map out the areas in which legal
decisions are justified. Since justification is linked with the concept of
rationality and with the opposition of formal and non-formal logic, the
essay deals with a rather controversial issue concerning legal reasoning.
I will use the term "justification" in four meanings which will be
singled out later (cf. point 4). I use this term without any qualification
in the widest meaning.

2. The making of justified legal decisions is a part of legal discourse.

The call for justification means that the decisions in question are
neither evident nor arbitrary ('). "Legal discourse" refers here to any
verbalized reasoning related with legal issues which in our legal culture
is expected to be dealt with in a rational way.
The term "rational" means that a sentence, a norm or an evaluation

is justifiable by proper argumentation. Generally speaking a decision is

rational, if it is based on determined knowledge and determined
evaluations. If we ask whether a decision is properly inferred from its
premisses we are talking about internal rationality ; if we ask whether
the premisses are rightly assumed we are speaking about external
rationality of the decision. The criteria of what is a proper
argumentation are rather differentiated depending on many factors.
The qualification of an argumentation has to be relativized to a

(1) Perelman writes "... doit être justifié, pour un esprit épris de rationalité, ce qui n'est ni
évident ni arbitraire" (C. Perei.man. Justice et raison, Bruxelles 1963, p. 237).

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278 J. WRÖBLEWSKI

determined type of audience (or to a given audience) and to a

determined type of situation (or to a given situation) (2).

3. The area of legal discourse can be typologized in many ways. For

our present purposes it is sufficient to single out two typologies and
give standard examples of each them without pretending to make any
complete enumeration.
The first typology is subject-oriented. The paradigms are three
activities : law-making, law-applying and law-describing activity. The
first in statutory law systems is thought of primarily as an enactment of
general norms by the law-maker ; the second has as standard example
the judicial decision determining legal consequences of a given case ;
the third is proper for legal science dealing with legally relevant
phenomena.
The second is problem-oriented.
typology The basic types are :
solution of a controversy and justification of a decision. The standard of
the former is trial in which the contradictory claims of the parties are
settled by a competent authority. The example of the latter is a
justification of decision by evoking standards according to which the
decision is expected to be made.
Both typologies do overlap, since one can expect a justifiability of
each legal decision or of each scientific statement, and in almost any
legal discourse there is an element of controversy. This seems to be an
explanation why a paradigm of legal reasoning is either reasoning
justifying judicial decision disposing of a case or reasoning demonstra
ting a scientic statement in legal dogmatics (3).
For the present purposes I single out as the types of legal discourse
justification of law-making decision, of interpretative decision and of
final law-applying decision. The context of these three types of
justifications is the contemporary system of statutory law working
within an ideology of rational and legal decision-making (4). I assume
that the reasonings inherent in these justifications are specific for legal

(2) For the concept of "audience" cf. C Perei.man and L. Olbrechts-Tytfca. La nouvelle
rhétorique, Traité de l'argumentation. Paris 1958. §§ 3-8. C. Perei.man. Logique juridique, Paris
1976. par. 52, 61, 62. Idem, L'empire rhétorique, Paris 1977. chapt. II.
(3) E.g. A. Aarnio, On legal Reasoning, Turku 1977. part II. III.
(4) Cf. J. Wrobi.ewski. Idéologie de l'application judiciaire du droit, Oesterr. Zft. f Oeff. Recht.
25. 1974; Idem, Sqdowe stosowanie prawa (Judicial Application of Law). Warszawa 1972.
chapt. XII. point 2.

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 JUSTIFICATION OF LEGAL DECISIONS 279

discourse and that the particularities of legal reasoning can be explained

by their links with the three types of decisions the lawyer has to make
and has to justify in a rational manner.
Decisions are studied as acts conditioned
by many factors or as
justifiable (performative) linguistic expressions. From the former point
of view one explains decision psychologically and/or sociologically,
from the latter one uses logico-semiotical analysis to describe the ways
in which reasons of decision are or could be given (5). I am interested
here only in the problems of justification and 1 will present them on the
basis of an analysis of theoretical models of each type of decision
making thought of as a rational activity.
Theoretical models in question are not generalized descriptions but
rather scientific constructs singling out essential problems the decision
maker has to solve if he has to justify his decisions in a sufficiently
complex context
decisional involving controversial issues of fact and of
law, which are, however, not so easily separated as it seems according
to traditional theories and corresponding legal institutions (6).

4. There are, roughly speaking, four kinds of logical-semiotical tools

legal theory uses or can use dealing with legal problems : "logical
analysis", formal logic, non-formal logic and (general) linguistics (7).
"Logical analysis" in this context refers to the kind of philosophizing
about linguistic phenomena, formerly represented by neo-positivism,
and later by consecutive phases of Wittgenstein's philosophy and by
the Oxford philosophy of natural language. One can discuss whether to
include or not this philosophy in the inventory of logico-semiotical
tools we are writing about. It seems that it would require a
terminological convention to settle this problem. However, the
influence this philosophy had and has on legal theory is beyond
doubt (8).

(5) Cf. Wröbi-Ewski. Sqdowe .... op. cit., chapt. II, III ; Idem, Motivation de la décision judiciaire,
in ed. C. Perei.man and P. Foriers. La motivation des décisions de justice, Bruxelles 1978.
(6) Cf. C Perei.man, La distinction du fait et du droit. Le point de vue du logicien, in Le fait et le
droit. Bruxelles1961. cf. also other studies in this volume.
(7) Cf. in general J. Wrobi.ewski, Melody logiez no -jqzyko we vt>prawoznawstwie (Logico
Semiotical Methods in the Legal Sciences), in ed. A. Lopatka, Metody badania prawa, Wroclaw
Warszawa-Kraköw-Gdarisk 1973. chapt. II. III.
(8) The most influencial trend in analytical jurisprudence is represented by H. L. A. Hart. Cf. J.
Woi.enski. Analytical Jurisprudence and Contemporary Linguistic Philosophy, Archivum
luridicum Cracoviense. vol. IV. 1971. The application of some ideas of Wittgenstein in legal theory

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280 J. WRÖBLEWSKI

"Formal logic" in this context means either formal aletic logic or

formal deontic and normative logic, or both of them. The common
feature of any formal logic is that it is presented as formalized calculus,
which is "interpreted" (in the logical sense of this word) in the manner
relevant for an analysis of legal discourse. The difference between aletic
logic on the hand, and the other formal logic on the other, is that the
former deals with sentences and their parts, and the several types of
relations and classes related with the "world of facts", whereas the
latter deals with norms and sentences about norms. The philosophical
issue is, whether the norms are sentences, and if the answer is yes, then
whether the aletic logic can be used in legal discourse involving norms
and evaluations. There are several ontological, epistemological,
axiological and methodological issues involved in this controversy, but
these are outside the scope of the present essay. It is sufficient to state,
that beyond a reasonable doubt at least some types of formal logic are
relevant for legal discourse (9).
"Non-formal logic" in this context refers to the theory of
argumentation, appearing to-day as "la nouvelle rhétorique" of the
School of Bruxelles or as a Topics by Th. Viehweg. The common
feature of the non-formal logic is that it is not and cannot be formalized
and that it describes various kinds of arguments in any disputes in
general, or in legal discourse in particular. The formal logical
arguments are only one of those used and are limited to a rather

restricted field, in which they have the cogency and test the formal
validity of reasoning. But this is not all that is needed for logico
semiotical analysis of legal discourse. There are some differences
between the two types of non-formal logic we are referring to. but for

our limited scope, we have to ignore them now (10).

is found in Aarnio, On legal reasoning, op. cit., passim, and esp. 95 sq.. 101 sq.. 1 19 sq.. 123. 126
sq.. 228. 301. Rather controversial attempts to use Wittgenstein s ideas directly gives R. A. Samek.
The Legal Point of View, New York 1974. Cf. my critical review Chitty's law Journal vol. 25. n. 3.
1977.
(9) For general reference cf. G. Kalinowski, La logique des normes. Paris 1972 ; U. Klug.
Juristische Logik, Berlin-Heidelberg-New York 1966. 3 ed. : O. Weinberger. Rechtslogik. Wien
New York 1970. chapt. II-IX.
(10) Cf. in general C. Perei.man-L. Oibrechts-Tyteca. op. cit. : Perelman. Justice et raison.
Bruxelles1963. chapt. XI, XIV. XVI. Idem, Le champ de l'argumentation. Bruxelles 1970. chapt.
I-XVIII.Idem. Logique juridique, op. cit. : Idem. L 'empire .... op. cit.. Paris 1977. Th. Viehweg,
Topik und Jurisprudenz, München 1965. 3 ed. : A. Giuliani. Nouvelle rhétorique et logique du
language normatif. Logique et Analyse. 49, 50. 1970. For discussion cf. Stone. Legal Systems and

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 JUSTIFICATION OF LEGAL DECISIONS 281

Opposing formal logic and non-formal logic I am using the term

"logic" in a rather broad way not accepted by those who identify
"logic" with "formal logic" (").
(General) linguistics furnishes also some tools for logico-semiotic
analysis. Legal norms are formulated in a legal language, which can be
treated as a species of common natural ethnic language. The properties
of legal language are analyzed on the syntactic, semantic and pragmatic
level 02).
All four groups of tools can be used dealing with legal discourse on
the logico-semiotical level. In the present essay I will deal, however,
only with the use of formal and non-formal logic in the justification of
the three types of legal decisions enumerated above.
According to the postulate of rationality each legal decision has to be
justifiable and is justified if it is challenged or if there is a duty to justify
it.
There are four kinds of justification which are relevant for our
analysis. The first two are corollaries of the opposition between internal
and external rationality, and two are related to the opposition of formal
and non-formal logic (n).
Internal justification/hereafter referred to as IN-justification. deals
with the internal rationality of legal decision. A decision is IN-justified
if it is inferred from its premisses according to the accepted rules of

Lawyers Reasoning. Stanford 1974. chapt. VIII ; Weinberger, op. cit.. chapt. XIV, points 4. 5 ; Id.,
Topik und die Plausibilitätsargumentation. ARSP 59. 1973; Struck. Topische Jurisprudenz.
Argument und Gemeinplatz in juristischer Arbeit, Frankfurt am Main 1971 : M. Taruffo, La
motivuzione delta sentenza civile. Padova 1975. chapt. IV. points 2. 3 and lit. cit. Stoecki.i. Topic
and A rgumenttion. The Contribution of Vieh weg and Perelman in the Field of Methodology Applied
to Law. ARSP vol. 54, 1968 : Gianformaggio Bastida. Gli argomenti di Perelman : dallà neutralita
dello scienzato all'imparzialita del giudice, Milano 1973.
(11) Against reduction of "logic" of "formal logic" cf. e.g. C. Perelman. Le champ de
l'argumentation. Bruxelles 1970, chap. IX ; Idem. Logique juridique, op. cit.. p. 3-5 and litt. cit.
(12) Cf. B. Wrôblewski. Jqzyk prawny i prawniczy (The Language of Law and juristic
Language). Krakow 1948 ; K. Opalek i J. Wröbi.ewski. Zagadnienia teorii prawa (Problems of
Legal Theory). Warszawa chapt. II. point 1.1. : J. Wrôblewski. Zagadnienia wyktadni prawa
ludowego (Problems of the Theory of Interpretation of the People's Law), Warszawa 1959, chapt.
V ; T. Gizbert-Studnicki. Jçzvk prawny a jçzyk prawniczy (The Language of Law and Juristic
Language). Zeszyty Naukowe Uniwersytetu Jagielloriskiego, prace prawnicze 55, 1972. About the
relations of law and language cf. e.g. E. P. Haba. Études en allemand sur les rapports entre le droit
et la langue, Archives de philosophie du droit. vol. XIX. 1974, vol. XX. 1971 and lit. cit. The
studies included in the volume ed. V. Scarpelll Diritto e analisi del linguaggio, Milano 1976.
( 1 3) The ideas concerning the concepts of justification elaborated here in detail are schematically
presented in my paper : Legal Decision and its Justification, Logique et Analyse 53-54, 1971.

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282 J. WRÖBLEWSKI

inference. The condition of IN-justification is the existence of the rule

with which one can test the internal rationality of decision. The validity
of the premises is taken for granted.
External justification (hereafter referred to as Ex-justification) deals
with the external rationality of legal decision. A decision is Ex-justified
if its premisses are qualified as good according to the standards used by
the person who makes the qualification. It is evident that legal decision
could be IN-justified but have no EX-justification, if e.g. the scientific
data or evaluations used by the decision-maker are rejected by the
person analyzing this decision.
Formal justification (hereafter referred to as F-justification) is a
justification which is tested by formal logic, provided that there is a
formal logic adequate for such testing task. "Adequacy" means here
that there is a formal logical calculus, whose theorems can be
interpreted (in the logical meaning of this term) by the linguistic
expressions used by decision-maker.
Non-formal justification (hereafter referred to as NF-justification) is
a justification which does not fulfil the conditions put forth above for
F-justification. The area of NF-justification is, therefore, negatively
determined by the scope of formal logical calculi adequate to deal with
legal decisions. If one denies any applicability of formal logical calculi
to legal decisions then these decisions could be only NF-justified. If the
applicability in question is restricted to some legal decisions, then some
of them could be F-justified, and other only NF-justified.
Combining the IN- and EX-justifications with F- and NF
justifications we get four types of justified legal decisions C4). We will
come back to the typology of justification after presenting the law
making, legal interpretation and application of law in the form of
theoretical models and identifying the relevant elements of the three
types of decisions, which are the results of those activities.

5. As one of the three areas of legal discourse we have singled out

law-making with its result in the form of a law-making decision. This
decision has to be justified decision, because law-making is thought of
in our legal culture as a rational goal-oriented activity.

(14) C. Perelman puts together IN-justification and F-justification on the one hand, and EX
justification on the other hand : "C'est le rôle de la logique formelle de rendre la conclusion
solidaire des prémisses, mais c'est celui de la logique juridique de montrer l'acceptabilité des
prémisses". C Phrei.man. Logique..., op. cit.. p. 176.

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 JUSTIFICATION OF LEGAL DECISIONS 283

To present the problems of justification of the decision in question in

the simplest way is to present a model of a rational law-making
activity 05). This model presents the essential problems which ought to
be solved by the law-maker if his activity has to be rational. The model
singles out five elements :

a) Determinationof a purpose of law-making in a way sufficiently

precise to a choice of means for its achievement. These purposes are
thought of as values according to the axiological system accepted by the
law-maker. Depending on the characteristics of this axiological system
the law-maker has some degree of decisional
lee-way, but in any case
he has to choose among axiological systems. The evaluative choices are
justified ultimately by getting agreements concerning some values.
Only non-formal logic can deal with these issues if basic non-relativized
axiological choices are controversial. This does not hinder the empirical
and factual explanation why these choice have been made.
b) Determination of empirical relations between the type of
situations the assumed purpose belongs to, and the type of phenomena
which can have those situations as their consequences. In other words,
this is the determination of the potential means to the assumed purpose.
This is an area of empirical knowledge. The role of formal logic is here
generally determined by its functions in any empirical science. The
relevant issue is that of going from scientific descriptions in the form of
"anancastic statements" to instrumental directives, but I leave it out as
the problem more general than law-making 06).
c) Selection of the potential means to the purpose which can be used
as legal instruments. In other words this is the determination of
potential legal means to the assumed purpose.
The law-maker has to answer three quêtions : whether legal rules are
proper means from an instrumental point of view ? ; whether legal
rules are proper means from the point of view of non-instrumental

values which the law-maker binding him ? ; what is the

treats as
relation of legal rules to other instruments of social policy, if used for
the same goal as these rules?

It is patent, that in solving these problems the law-maker should use

both formal and non-formal logic. The former is evidently used for the

(15) Cf. J. Wrobiewski. A Model of Rational Law-making. ARSP .... 1979. in print.
(16) Cf. G. H. von Wright. Norm and Action. London 1963. chapt. I, point 7.

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284 J. WRÖBLEWSKI

problems of instrumentality, the latter for the problems of non

instrumental evaluations, and both types of logic are interfering in
answering the third question.
d) Determination of a legal norm as the instrument for achieving the
purpose in question, i.e. the choice of a concrete legal means. This
includes such decisions as determination of the type of legal regulation
(e.g. civil, penal, administrative ; substantive or procedural), choice of
hierarchical level of enacted norms, choice of the best formulation of
legal text according to the directives of legal technique and so on. Here
technical and instrumental problems play a decisive role, but also we
have to do with choices requiring evaluative agreements which cannot
be reduced to "pure facts", and then the non-formal logic dealing with
persuasion and agrements has to explain the decisions or help in
making them.
e) Enactment of a general legal rule as the final result of the law
making activity is a thetic performative act(17) determined, especially
on the higher levels of law-making, by procedural legal norms.
The formula of the justified law-making decision can be presented in
the following simplified manner : Legal norm N is enacted in the form
of provisions P, ... Pn as the means for achieving purpose G chosen
according to instrumental and non-instrumental evaluations V, ... Vn
determined by the axiological system SA. taking into account scientific
statements S, ... Sn describing the regularities of relevant empirical
phenomena.

6. Legal interpretation is one of the typical areas of legal discourse.

We are dealing here with the so-called operative interpretation that is
interpretation which is made during an application of law when one
has determined the meaning of the applied legal norm 08). To present
the problems of justification of interpretative decision it is convenient to
construct a model of operative interpretation consisting of four
elements.

(17) About performative and thetic verbs cf. A. G. Conte, Aspetti délia sema mica del linguaggio
deontico. in, ed. di Bernardo. Logica deontica e semantica. Bologna 1977. p. 160 sq.
(18) About the concept of operative interpretation cf. L. Ferrajoii. Interpretazione dottrinale e
interpretazione operativa. Rivista int. di fil. del diritto 1. 1966 : On links between understanding
law and application of law cf. J. Esser, Vorverständnis und Methodenwahl in der Rechtsfindung.
Frankfurt am Main 1972. p. 139 -,The model of operative interpretation outlined in the present
essay is based on the analysis in J. Wröbi.ewski. Zagadnienia teorii wyklad niop. cit..
chapt. VII -, 3 1 ; Idem. Sçdowe.... op. cit.. chapt. VII.

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 JUSTIFICATION OF LEGAL DECISIONS 285

a) The starting point of legal operative interpretation is a doubt

about the "proper" or "true" meaning of the norm to be applied in the
case in question. The controversial rule "interpretatio cessât in claris"
does not solve the borderline between clear meaning and doubt.
Whether there is a doubt depends on the concrete circumstances of the
case even if the norm which has to be applied is linguistically clear and
unambiguous. If clarity is challenged, then one has to interpret the
norm even to show that it should be applied in its "grammatical
meaning". One can demonstrate that at least in some situations the
qualification of clarity has an evaluative charater C9). Controversies
concerning clarity are for these situations described and explained by
non-formal logic.
b) If there is a doubt concerning the meaning of the norm then one
uses first degree interpretative directives. These directives serve to
determine the meaning by using the linguistic context of the norm in
question (i.e. context of language in which the norm is formulated), its
systematic context (i.e. contex of the system the norm in question
belongs to) and its functional context (i.e. psycho-sociological context
in which the norm has been enacted and/or is applied). Interpretative
directives are. with certain exceptions, dependent on evaluations. An
interpreter has to evaluate in order to use them and he has to choose the

directives he uses. The depends on values he wants to

last choice
achieve through his interpretation, e.g. the certainty and stability of law
or the adequacy of law to the changing circumstances of societal wants
and needs (20) It is patent that to decide which evaluations are proper
for legal interpretation, one should use non-formal logic.
If the result of an application of the first degree interpretative
directives is the determination of the meaning of the norm in question,
then one goes over to the fourth element of the model (letter d). If.
however, the result is not satisfactory, because the linguistic, systemic
and functional meanings are different, it is necessary to do away with
these differences (letter c).

( 19) Cf. J. Wröbi.ewski. Legal Reasonings in Legal Interpretation, Logique et Analyse. 45. 1969.
p. 15 sq.
■
(20) Cf. J. Wröbi.ewski. L'interprétation en droit théorie et idéologie. Archives de philosophie
du droit, vol. XVII. 1972. It seems that the assumed values of legal interpretation can be treated
also as its purposes - cf. O. Weinberger. Interpretation und Zielsetzung, Grazer Philosophische
Studien, vol. 2. 1976. part. VII. VIII.

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286 J. WRÖBLEWSKI

c) If the interpreted norm has different meanings according to

different sets of interpretative directives then one has to choose the
"true" or "proper" meaning. Interpretative directives of the second
degree determine preferences given to the divergent meanings. The
problems of the use and choice of the second degree interpretative
directives are strictly analogous to those of the first degree mentioned
above.

d) The final result of interpretation is an interpretative decision. The

commonly used formula "norm N has meaning M" leaves out its
justification.
The formula pointing out the justificatory elements, and simplified
by omitting the degrees of interpretative directives, is the following :
Norm N has meaning M in language L according to the interpretative
directives DI| ... DIn and evaluations V1,... V„necessary for the choice
and the use of DI] ... DIn.
The interpretative decision is justified internally by its premisses. The
justifiability of the decision is the condition of its internal rationality.
It. is notorious that interpretative decisons are controversial,
especially in hard cases. Then even internally rational interpretative
decision can be challenged if one attacks its premisses. The simplified
formula of justified interpretative decision plainly singles out points, in
which one can demonstrate that the decision in quetion is not
externally rational because its premisses are not EX-justified. The text
of the norm is not challenged, but the existence or inexistence of
doubts, the choice of interpretative directives and the values relevant
for their use can be challenged if there is a disagreement concerning the
evaluation inherent in interpretative activity. Only argumentative
techniques can be used to make an agreement or to describe the ways
in which it is or is not made. No wonder
that interpretative activity
takes a prominent place in the "legal logic" elaborated from the rhetoric
point of view, which is characteristic for the non-formal logic of the
School of Bruxelles (21).

7. The third typical area of legal discourse is that of the application

of law. Analogously to the two preceding areas, the problems are
presented by an analysis of a model of an application of law in the

(21) Cf. e.g. C. Perei.man. Logique.... op. cit.. p. 36 sq.. 140. 151 sq. : Idem. L'interprétation
juridique. Archives de philosophie du droit, vol. XVIII. 1972.

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 JUSTIFICATION OF LEGAL DECISIONS 287

system of statutory law and assuming the acceptance of the ideology of

a rational and legal decision.
The model of an application of law includes the solution of four
groups of problems (22).

a) The law-applying authority has to choose a valid norm with a

meaning sufficiently precise for the decision-making. The choice in
question requires : testing the validity of the norms ; solution of the
conflicts of norms, if any ; when the applied text is evaluated as not
clear enough, then the decision-maker has to make an operative
interpretation of it so as to remove any doubts which are relevant for
the decision in question (c.f. point 6). The determination of this norm
gives one of the premisses for legal decision (23).
b) The law-applyng authority must make a decision of evidence
stating that the fact of the case F has occurred at time I and in place p.
To make this decision one uses several kinds of "evidence" and one
evaluates them according to the accepted rules of evidence, which can
be either empirical (ERE) or legal (LRE). In the former case the
existence of fact F is stated according to the paradigm of empirical
science or according to common sense or common experience. In the

latter case the evaluation of evidence by legal is determined

provisions (24). The facts which have to be proved are at least in part
determined by legal norms. The way in which legal norms determine
the fats influences the type of problems which the decision of evidence
has to face. Ceteris paribus the simplest tasks are those of stating the
existence of the facts determined in a descriptive, positive and simple
- those determined
way. the hardest ones evaluatively, negatively and
in a relational way (25). In any case the decision-maker must state the
existence of the fact of the case and express it in the language of the
applied legal norm.
c) The law-applying authority has to make a subsumption of the fact
of the case under the applied legal norm. This means, that the decision

(22) Cf. J. Wröbifwski.Sgdowe.... op. cit.. chapt. VII-X.

(23) Cf. J. Wrobif.wski.La règle de décision dans l'application judiciaire du droit. in ed.
C. Perei.man. La règle de droit. Bruxelles 1971.
(24) Cf. J. Wröbi.ewski. The problem of the so-called Judicial Truth. Tidskrift. utgiven av
Juridiska Foreningen i Finland. 1. 1975. p. 24-30.
(25) Cf. J. Wröbi.ewski. Facts in Law. ARSP. vol. LIX. 1973. 2. About the problems of
qualification of facts cf. C. Perei.man. Logique. .. op. cit.. p. 33 sq., 146. 164.

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288 J. WRÖBLEWSKI

maker states that the fact of case F belongs to the denotation of the term
"F" which is used in the applied legal norm as the name (or predicate)
of facts conditioning determined legal consequences.
d) The decision-maker has to determine legal consequences of the
fact of the case according to the applied legal norm. This norm can fix
only one consequence or provide the more or less restricted area of

possible consequences giving, thus, a decisional lee-way. In the latter

situation the law-applying authority has to make a choice using various
criteria. Some of them are legal norms themselves determining the
directives of the choice of consequences (DC), but as a rule their
existence does not exclude the necessity of taking into account the
evaluations VI ... V„.
The formula of the justified law-applying decision can thus be. stated
in the following manner : According to norm N applied in the meaning
M (determined to the interpretative directives DI, ... DIn and
according
evaluations V1,... VJ,necessary for the choice and for the use of Dl, ...
DIn) the fact of the case F which has occurred in t, p (according to the
accepted evidence E[ ... En based on the empirical rules of evidence
ERE, ... EREn and/or legal rules of evidence LRE, ... LREn and/or
evaluations V, ... V£), has for its legal consequences C, ... Cn according
to the directives of the choice of consequences DC, ... DCn and
evaluations V] ... Vnc.
The decision of an application of law can be internally justified by
the premisses the decision-maker has used. Whether it is explicitly
justified in fact depends on the concrete situations and on the
procedural provisions of a given legal system (26). Its justifiability,
however, is the condition of its internal rationality.
If we ask. however, whether the premisses of the law-applying
decision are justified, then we have to do with an EX-justification and.
hence, with an external rationality of law-applying decision. There is.
then, the question of choice. From the formula of the final law
applying decision it is clear, that there are several choices at hand :
interpretative choices involving the choice of interpretative directives
and of relevant evaluations ; choices of evidence including the choice of
directives and, if needed of evaluations ; choices of the directives of the
choice of consequences and, eventually, of evaluations relevant for

(26) Cf. J. Wröbi.ewski. Motivation .... op. cit.. p. 122-130.

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 JUSTIFICATION OF LEGAL DECISIONS 289

them. The role of persuasive techniques and of non-formal logic in the

application of law is analogous to their role in the interpretation of law.
8. Legal decisions, exemplified by law-making decision, interpreta
tive decision and Final decision of an application of law, should be
rational. The rationality of decisions is tested by their justification.
According to our terminological convention, legal decision can be
IN-justified and/or EX-justified. and each kind of justification can be
either F-justified or NF-justified. A decision is IN-justified if it is
inferred from the premisses accepted by the decision-maker according
to the rules of inference he treats as valid. An IN-justification of a
decision consists in making these premisses and rules explicit. A
decision is externally rational if the premisses and rules consistently
applied are right according to the standards accepted by the critic. The
analysis of the decision in terms of these standards is an EX
justification of this decision.
The presentation of legal decisions in simplified formulas has been
made for singling out the issues relevant for their justification.
Generally speaking each decision is justified by reference to some
premisses. IN-justification tests whether the decision is inferred from
these premisses according to some rules. EX-justification qualifies
those premisses as right or wrong ones. These premisses, roughly
speaking, can be formulated as sentences or as directives and

evaluations. The problem whether the decision is F-justified by rules of

formal logic or is NF-justified by some argumentation depends on the
one hand on the kind of formal logic we have at our disposal, and on
the features of the premisses on the other hand.

If we assume that several legal reasonings can be treated as

interpretations of logical calculi, then some legal decisions can be tested

as to whether they are F-justified.
One can demonstrate that under some conditions justification

concerns sentences. This is obvious with the scientific statements, as

reasons for law-making decisions. But one can argue, that directives
and evaluations referred to in justifications of legal decisions can be
presented in such a way. that we will have to do with sentences. If we

state that X is consistent with directive D. then we are expressing a

relational statement, which under some conditions is a sentence (27).

(27) Cf. J. Wrobi.fwski. Statements on the Relation of Conduct and Norm. Logique et Analyse.
49-50. 1970.

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290 J. WRÖBLEWSKI

E.g. if we say that according to an interpretative directive DI term T

has a meaning M. then if the directive in quetion determines
descriptively conditions in which T has meaning M then the expression
"T has meaning M according to DI" is either true or false. The same
holds for other directives referred to in justifications of legal decisions.
One should add, however, that it would be obviously false to claim,
that all directives could be formulated in a
way satisfying the
requirement exemplified above. And for those
not fulfilling these
conditions, we cannot speak about F-justification, but only about an
NF-justification. It seems that this is the standard situation in all hard
cases.

Justification of legal decisions are referring to values. There is also a

possibility to relativize some values in such a manner, that a statement
"X has value" depends on the descriptively stated properties of X.
Under some conditions it would be true for some instrumentally
relativized statements (especially vitalin the justifications of law
making decisions), and for some systematically relativized statements
(which are relevant in all legal decisions (28)). The formula of the former
is "X is i-valuable because it is a means to end E". the formula for the
latter is "X is s-valuable
according to the axiologicai system AS".
Instrumental are empirically founded. Axiologicai systems can
values
define properties of s-valuable objects by enumeration of descriptive
qualities. But it is rather doubtful whether one can assume that it is
possible to relativize all evaluations relevant for justification of legal
decisions in such a way as to operate with sentences. Usually one
operates with evaluations, which are the object of controversies and the
target for getting agreements NF-justifying the decisions (29).
We can conclude, then, that the IN-justification of legal decisions is
possible as the F-justification only if we have an adequate formal logic
to deal with directives and evaluations or if we can by some logico
semiotical operations transform justificatory elements in sentences. The
former alternative is challenged in formalist and anti-formalist
controversy of theories concerning legal reasoning (30). The latter

(28) About relativization cf. J. Wröbi.ewski. Systematically relativized statements. Logique et

Analyse .... in print.
(29) Cf. C. Perei.man. Logique.... op. cit.. p. 101 sq. : Idem. L 'empire.... op. cit.. p. 176 sq.
(30) Cf. e.g. N. Bobbio. Giusnaturalismo e positivismo giuridico. Milano 1965. Perei.man.
Justice .... op. cit.. chapt. XIV. G. Kaunowski. Logique formelle et droit, Annales delà Faculté de

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 JUSTIFICATION OF LEGAL DECISIONS 291

alternative demands a construction of an axiological system, which of

course is not constructed yet and never can be constructed for the needs
of law (31).
We cannot,however, reject the demand for rationality of legal
decisions. Internal rationality depends on IN-justification and is linked
with the consistency of the decision with its premisses. Therefore if we
cannot use F-justification. we should get as close to it as it is possible.
The example is to present a decision as the result of accepting a chain of
premisses constructed in such way that the decision is more or less
intuitively justified by it. It seems, that the persistence of legal syllogism
as a justification of decision of an application of law is the best example
of this situation (32).

9. The problem of EX-justification of legal decision is more

complicated than that of the IN-justification discussed above. EX
justification deals with the premisses of legal decision. These premisses
are constitued by sentences, directives and evaluations. The question of

droit et science économique de Toulouse, vol. XV. 1. 1967 ; J. Horovitz. La logique el le droit, in
ed. Perei.man. Etudes de logique juridique. Bruxelles 1967. vol. II ; I. Tammeio. Legal Formalism
and Formalist Devices of Juristic Thinking, in ed. S. H<x)k. Law and Philosophy. New York 1964.
p. 316 sq. : J. Wrobiewski. Legal Reasoning in Legal Interpretation. Logique el Analyse. 45. 1969.
p. 24-30. It seems that prima facie Weinberger is right in asserting, that there is no formal logic
adequate for the purposes of legal reasoning (O. Weinberger. Aufgaben und Schwierigkeiten der
analytischen Rechtstheorie. ZFt. f. allgemeine Wissenschaftstheorie, vol. IV. n. 2. I 873. p. 362 sq.).
More optimistic sounds the view concerning the maturity of deontic logic (G. Kaunowski. La

logique des normes. Paris 1972. p. 204) although it has been in a rather initial period only several
years ago (cf. G Kaunowski. Introduction à la logique juridique. Paris 1965. p. 137).
(31) Such construction would means creating a system of axiology based on some principles
which would determine the solution of concrete cases, which would be the incarnation of naive
ideas of law and its application in traditional legal positivistic thinking. Cf. J Wrobiewski.
Sçidowe .... op. cit.. chapt. XII. points 2.3. 2.4. Cf. alsoC. Pf.rei.man. La justification des normes, in
ed K. Kuypens. Human Sciences and the Problem t>f Values. The Hague 1972. p. 53 sq.
(32) C. Perelman writes that "... il y a toujours moyen de transformer une argumentation
quelconque en un syllogisme, en ajoutant une ou plusieurs prémisses supplémentaires" but he adds,
that this given "la satisfaction assez puérile" (C. Perei.man, Logique .... op. cit.. p. 2, 3). For
constructing such syllogisms cf. e.g. J. Wrobiewski. Legal Syllogism and Rationality of Judicial
Decision. Rechttheorie vol. V. I. 1974. G. Kalinowski is the partisan of special practical syllogistics
for the area of legal discourse (cf. G. Kaunowski. Éludes de la logique juridique I (1953-1969),
Paris 1972. Chapt. I jj 3. chapt. IX) and is strongly opposed to any solutions of using some "parallel
logic" to explain the intuitive cogency of such thinking without accepting some logic of norms (cf.
ibidem, p. 104. 130 ; Idem. //significant della deontica per la filosofia morale e giuridica. in ed. G.
Di Bernardo. Logica deontica .... op. cit.. p. 278 sq.). One of the best examples of conceptions
rejected by Kalinowski is in my opinion M. Moritz. Kann das (richterliche) Urteil deduziert
werden '!. in Festskrift tili Per Olof Fkelöff. Stockholm 1972

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292 J. WRÖBLEWSKl

EX-justification is whether the premiss is rightly or wrongly accepted.

To answer this question we have to justify the premiss.
Justification of sentences is in principle not different in law, from
what it is elsewhere, although there are some differences connected
with ways of using the concept of truth in interpretative decisions
("true meaning") or in law-applying decisions ("the judicial truth") (33).
The criteria of justification are given by science, common sense and
common experience. One can fairly well assume, that for the state
ments relevant for legal decisions there is a quite high level of agree
ment (34).

Justification of directives and evaluations ex hypothesi is possible

only by their relativization. The observations formulated above con
cerning instrumental and systemic relativization do apply here. But the
relevant factor is, that in evaluations one always reaches a point where
one has to choose between non-relativized values or various axiological
systems (3S). Here is the area of many disagreements. If they are
changed into agreements it is by using some persuasive arguments
effectively. Non-formal logic both describes these argumentations and
helps in getting agreements for a given audience and in a given
situation. There are neither rules nor tests deciding in a conclusive
manner the issue in question, but one can reach solutions which more
or less harmonizethe conflicting positions in a concrete case. There one
applies the prudentia which is hard to generalize, but which cannot be
substituted by any general rules of decision.

10. Legal decisions

are dependent on values and directives. Their
rationality consists in their justification. The IN-justification can
demonstrate their consistency only if the premisses of the decision are
put in a propre manner and if there is a set of rules for testing this
consistency. This set of rules giving the ground for F-justification is
hardly adequate for demonstrating the reasoning in question and.
therefore, one uses analogies formalized reasonings, which correspond
to current intuitions. There are, however, no substantial problems of

(33) About the concept of "true meaning" cf. J. Wröbi.ewski. Interpret alio secundum, praeter et
contra legem, Paristwo i Prawo 4-5. 1961 : Idem. Teoria wykfadni.... op. cit.. chapt. VIII. £ 2.
About "judicial truth" cf. Idem. The Problem .... op. cit.. p. 31 sq.
(34) According to Perelman the Cartesian ideal of science gives place for rhetorics and dialectics,
but is based on some universal evidence cf. C. Perelman. L 'empire.... op. cit.. p. 175.
(35) Cf. A. Aarnio. op. cit.. p. 114-121.

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 JUSTIFICATION OF LEGAL DECISIONS 293

preserving internal rationality, if one does not commit obvious errors.

Real issues concern not the correctness of reasoning, but the values of

premisses as reasons of the decision (36). Whether reasons of legal

decision depending on values and directives are good or bad one can
persuade by proper argumentation. This would be ex hypothesi a NF
justification, which belongs to L'empire rhétorique(37).

University of Lodz.

(36) Cf. c Perelman. L'empire.... op. cit.. chapt. iii.

(37) Ut supra p. 177.

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