Ratio Juris. Vol. 3 No.

1 bis March 1990 (100-17)

copyright 0 Jerzy Wrbblewski 1990

Principles, Values, and Rules in

Legal Decision-Making and the
Dimensions of Legal Rationality
JERZY WROBLEWSKI

Abstract. The author singles out various conceptions of rationality used in practical legal
discourse: formal and substantive rationality, instrumental goal- and means-rationality,
communicative rationality. Practical rationality is expressed in decisions justified by
epistemic and axiological premises according to the rules of justificatory reasoning. Five
levels of analysis of this justification are identified. Rules, principles and evaluations
are used as justifying arguments and their characteristics determine the dimensions
of rationality of decision depending on the features of rules, various conceptions of
principles, and kinds of relativisation of evaluations. The dimensions of legal rationality
depend mainly on three singled out conceptions of rationality, i.e., formal rationality
dealing with the deep structure of justification, instrumentally oriented rationality as
content of justifiability, and communicative rationality linked with the pragmatics of
human interaction. Legitimacy, according to the presented analysis, appears as a sub-
class of external justification dealing with axiological premisses in terms of instrumental
rationality and/or communicative rationality.

I. Conceptions of Rationality
1. Though rationality is a postulate of knowledge and practical activity in our
historically evolved culture,' even today it does not apply to all areas of our
life.
Rationality as a general idea2can be opposed to irrationality and a-rationality .
Roughly speaking, if being rational means fulfilling the criteria for rationality,
then being irrational means that in a given case these criteria are not fulfilled
(Jarvie and Agassi 1987, 445-49). This dichotomy is, however, applicable

For a panoramic view of conceptions of rationality cf. Geraets 1979; Agassi and Jarvie 1987.
Rationality is treated as a virtue in MacCormick and Weinberger 1986, 189.
*This is a simplification because there are various ideas of rationality and only some of them are
used in this essay. Bunge (1987)identifies seven concepts of rationality.
 The Dimensions of Legal Rationality 101

only to that area where the conception of rationality applies. One can make
another distinction where the conception of rationality is not applicable, and
this is the area of a-rationality.
2. The present essay deals only with the rationality of legal decision-making
as a case of legal practical discourse. I will thus leave out rationality in the
theoretical discourse, as opposed to the practical one. Although the distinction
between practical and theoretical could be attacked, I take it for granted in order
to restrict the scope of analysis and to exclude from it problems of “legal
theoretical discourse.”
3. The typology of the conceptions of rationality presented below is seen
merely as a tool of analysis for legal decision-making, and not as a general
taxonomy of the various conceptions in philosophical, sociological, and legal
reflection.
It seems that there are the following basic types of conceptions applicable
to practical a ~ t i v i t y . ~
First, there are the correlated conceptions of a formal and substantive rational-
ity. The former deals with the relevant structures of activity, whereas the latter
deals with the content of this activity.
Secondly, there is instrumental rationality based on the means and goals
(purposes) relation. Hence, one can have a goal-rationality and a means-
rationality which could be opposed or combined.
Thirdly, there is a communicative rationality based on the features of com-
municative interaction, i.e., the standards of good communication in general,
and of dialogical discourse in particular.
4. There are different areas of applicability of the concrete conceptions of
rationality. The general area of applicability of the conceptions in question is
primarily human conscious activity, which will be characterized according to
particular circumstances and needs.
Rationality also applies in a derivative way, to other areas: (a) non-human
activities, e.g., the behaviour of animals or even other organisms; (b) the
results of human activity, e.g., a rational decision or a rationally constructed
machine; (c) anthropomorphically, man-independent objects and nature as
a whole.
The conceptual precondition for making a decision is a choice between possible
alternative activities. There is an objective and a subjective approach to these
alternatives.
The objective approach can be characterized from the perspective of an
observer, who is not the decision-maker in the case. According to this approach
there are alternative actions and a decision, therefore, consists in selecting one
of them. The subjective approach is one where the alternatives in question are
known to the decision-maker, and the choice is between them. It is evident that

This is the typology adapted for the purposes of the present essay. For more general typologies
cf., e.g., Ape1 1979; Habermas 1979; Zirk-Sadowski 1984, ch. 6 .
 102 lerz y Wrbblewski

there could be a difference between the set of alternatives identified by each

of these approaches.
In the present essay we will deal with the subjective approach, that is, with
the choice of alternatives by the decision-maker. We are interested in the reasons
given for the selection of a course of action.
5. Generally speaking, the minimum condition of a rationality for a decision
is its ju~tification,~
through the giving of reasons for its selection as an alterna-
tive by the decision-maker. These reasons are either given by the decision-maker
(the subjective approach) or by an observer (the objective approach).
The justification of a decision through giving good reasons supporting the
choice could be treated as a meaning postulate for the term "rationality."
According to it a rational decision is one which has a proper justification
(Wr6blewski 1979b, 1983a, 49-70). What a "proper justification" is depends
on the concept of rationality used.
This meaning postulate does not identify rationality with justification. I am
giving here only a test for the rationality of a decision and I treat justifiability
as an indication of rationality in practical discourse.
The concept of justifiability presupposes several preconditions (Wrbblewski
1985a). The main ones are: (a) an adequate language for the formulation of
the justification; (b) that the justifying person has an adequate linguistic com-
petence; (c) that the justifying person has a minimum knowledge of the relevant
features of the justified decision; (d) that the justificatory reasoning has sense
in the discourse of justification.
6. Formal rationality of a decision concerns the structure of justification. In
the deep structure of any justification of a practical decision there is a relation
between the justificandurn (the decision) and the justificans (the justifying
arguments) through the rules of justificatory reasoning (Wr6blewski 1987c, 132).
The justificans consists of two types of premisses, i.e., of epistemic and axio-
logical ones:
I I

epistemic premisses
(EP)

-1-1 []cI,
justificatory reasoning
+====== axiological premisses
(AP)

The deep structure of justification presupposessome features of rationality, which

go beyond the presuppositions of any justification discussed in point 5 above.
(i) The RJR link the justificans with justificandurn in a way that makes it
necessary to speak of the "justification" of the conclusion (justificandurn) through
the premisses (justificans).(ii) There are criteria of separation and identification

*Concerning the conception of justification cf. Scarpelli 1983; Gianfomaggio 1986a. 1986b;
Perelman 1980, ch. 11; Peczenik 1983, chs. 2 and 4; Wrbblewski 1979a,1986a, 204-6.
 The Dimensions of Legal Rationality 103

of the epistemic and axiological premisses, and they have to be used jointly
as the justificans.
7. Taking this basic structure of formal justification as the starting point I
single out five levels of analysis of justification, three of which are relevant for
dealing with conceptions of rati~nality.~
The first level of analysis (J-1)deals with the coherence of a decision; whether
there is a relation of justification, if the premisses and the choice and use of
the RJR are taken for granted. If the decision (jwtificandum) follows from its
premisses (justificans) according to the RJR then the decision is "internalIy
rational."6 This is the case of formal rationality (point 6).
The second level of analysis (J-2) asks whether the premisses are "good" in
the sense of their acceptability to the person using them. Here the concept of
substantive rationality is needed (point 8). On this level we have to do with
what I propose to call the external, rationality.
The third level of analysis (J-3)deals with whether the RJR are proper and
are properly applied. This is the case of external, rationality.
The J-2 and J-3levels are basic for the concept of substantive rationality. The
following two levels are of more theoretical and philosophical interest, and do
not influence the concepts of rationality. These are the J-4 presuppositions of
justification, and the J-5 level of basic choices, which are not justifiable in the
discourse of justification.
8. Substantive rationality is here dealt with in relation to the levels of analysis
of justification (point 7).
Substantive external, rationality7 (level J-2) deals with the assessment of
premisses. This assessment appears in a weak or a strong form linked with the
degree of sit venia verbo "substantiality."
In the weak form the premisses are counted as "good reasons" in terms of
their acceptability relative to a determined audience or type of audience (Aarnio
1987, ch. 4; Perelman and Olbrechts-Tyteca 1976, par. 3-9). The acceptability
ex hypothesi is always audience-dependent. The questions who accepts "the good
reasons" and when does he accept them can be answered by singling out the
spatio-temporal dimension. The extreme case would be the acceptability of the
universal audience.
Acceptability, however, either deals with facts (sociologicalacceptability) or
implies a qualified acceptance, especially a reasonable acceptability (Aarnio 1987,
ch. 4). The former does not seem satisfactory because it eventually leads to an
identification of "rational" and "(factually) accepted." The latter needs a proper

I follow my analysis in Wroblewski 1986a. Cf. Wroblewski 1987c, 131-39. This approach goes
beyond the levels singled out in MacCormick and Weinberger 1986, 191-201.
' Internal rationality is for Aarnio "logical rationality" (Aarnio 1987, 186-89). Concerning other
y p o s i t i o n s , cf. Peczenik 1987.
The conception of external rationality (Wroblewski 1979b) has been elaborated in detail in Alexy
1978, Part C, ch. 11. This rationality combined with discourse leads to what Aarnio (1987, 190)
calls D-rationality.
104 Jerzy Wrbblewski

definition of what is "reasonable." This cannot, without circularity, refer back

to rationality.'
The strong form of substantive rationality not only refers to the acceptability
of premisses, but indicates what has to be accepted. For epistemic premisses
it identifies the standard for measuring the value of these premisses. Post-
positivistic philosophy of science has relativized this standard by setting it within
a historically and culturally determined framework.
For axiological premisses the substantive concept refers to an axiological
system treated as good or right. It assumes, thus, a sort of systemic axiology,
which is controversial (Wrbblewski 1978). It is problematic whether one can
treat as good justification a reference to a single value, which could be linked
either with a negation of the systemicity of the axiology or with a negation of
the universalization of the values in question.
Substantive rationality as external, rationality is conceived either in a
material or procedural version. The former aims at "good reasons" determining
their content by acceptability; the latter aims at determining "good reasons"
by the procedure by which their acceptability is reached. The procedural version
is strongly linked with communicative rationality (cf. par. 12).
9 . Substantive rationality also deals with the J-3 level of analysis (point 6),
that is to say with the choice and use of the RJR. This is the issue of external,
rationality decision. Several controversies concern the nature of the RJR used
in the justification of legal decisions. All the problems of the relation of law
and logic are involved here.
I cannot here deal with the question whether the RJR are rules of formal logic
or some kind of informal logic (if any); whether they are rules of transformation,
or of rhetorical and/or topical argumentation.' The issue depends on the
varieties of formal calculi, which could be "interpreted" (in the logical sense
of this term) by the RJR and on views of the nature of legal reasoning.
Without justifying my own position I present, beneath, my own view in the
following theses: A justification of a legal decision could be presented as
an inference from the premisses to the conclusion as a deductive reasoning.
Heuristically, however, the crucial issue is the stating of premisses, which
eventually leads to basic choices as to the standards for measuring the value
of epistemic premisses, and of a final unjustified choice as to the values under-
lying axiological premisses. It is extremely difficult to formulate the premisses
in question, especially in hard cases, in such a way that one can treat the RJR
as purely deductive. This is because of the lack of adequate formal calculi whose
"interpretation" legal justificatory reasoning would be. The best approximation

'For Perelman's conceptions of "universal audience" see Perelman and Olbrechts-Tyteca 1976,
par. 7; Perelman 1979b, 70; Perelman 1980, 72-74; for criticism cf. Gianformaggio 1973, 21, 217,
230; Taruffo 1975, 200-2; Alexy 1978, 207.
Aarnio, Alexy and Peczenik 1981; Alexy 1978; Brkic 1985; Gianformaggio 1986b, chs. 3, 4, 8;
Kalinowski 1972; Klami 1982, Part I, ch. 2; Klug 1966; MacCormick 1978; Peczenik 1983; Perelman
1979a; Weinberger 1970: Tammelo 1978; Wrbblewski 1974a, 198313, 1985a.
 The Dimensions of Legal Rationality 105

of the nature of this reasoning is a non-formal logic of transformation or

argumentation. This does not exclude the possibility of deductive reasoning
either in easy cases or when the premises are sufficiently precisely formulated.
Neither does it exclude the role of evaluations in justification. The assessment
of this role has strong influence in the opposition of formalists and anti-formalists
in legal reasoning (MacCormick 1978, chs. 2, 3, 8; Wrbblewski 1984a, 1985a,
292-95).
10. Goal-rationality is based on the instrumental relation between means and
goal or purpose." One can ask whether the goal of a decision is rational. Goal-
rationality depends on the way in which the goal is justified as a value, i.e.,
something w h i d ought to be implemented.
Theoretically the goal can be justified through the proper sort of relativization.
There are several types of justificatory relativization (Wrbblewski 1981, 618-25).
First, instrumental relativization consists in the argument that the goal is
justified as a means to some higher level goals. This instrumental relativization
is expressed in the formula "The goal G, is vi-valuable as an instrument for
the goal G,," where, as a rule, G, is thought of as valuable. It seems that the
simple instrumental evaluation of GI is not used in practical discourse, and,
therefore, G, is assumed as having its proper value which is expressed in a
complex instrumental evaluative judgement.
Secondly, G, could be justified as being a necessary, or a necessary and
sufficient, condition of G,. We are then dealing with a conditional relativiza-
tion in which, as.in the above case, G, is treated as valuable. The formula of
such justification is "the goal G, is cc-valuable as a necessary (or necessary and
sufficient) condition of Gz."
Thirdly, the G, could be justified by an axiological system AS, treated as
a chosen system of values and/or rules. G, could be either defined as value in
the language of AS, or be inferred from AS. The formula of this justification
is "G, is sa-valuable according to the axiological system AS." This is a complex
systemically relativized evaluative statement (Wrbblewski 1978).
Goal-rationality belongs to the category of substantive rationality, because
the value of GI is a substantive one. Goal-rationality is related to the type of
justification expressed in the formulae given above. There are various goals of
legal decision and they depend upon the type of decision and the ideology of
decision-making .
11.Means-rationality, analogously to goal-rationality, is based on the means-
goal relation. The justification of the value of the means can take two forms,
in terms of their instrumental value or in terms of other values. The former
case is that of a simple instrumentally relativized value statement, the second
that of a complex instrumentally relativized statement. The corresponding

lo One may also speak of goal-rationality and means-rationality in terms of value-reasons and
purpose-reasons. Cf. MacCormick and Weinberger 1986, ch. 9; Summers 1978; on norm-rationality
and goal-rationality, cf. Klami 1980, ch. 2.
106 Jerzy Wrbblewski

formulae are: "The means M is is-valuable as a means for the goal GI"; "The
means M is ic-valuable as the means for the G, taking into account the value
of G, and other values relevant for the value of M."
The simple instrumentally relativized evaluative statement appraises the means
only in terms of their technical or praxiological qualities, e.g., efficacy, effec-
tivity, costs, speed, etc. It is a "formal" justification in the sense that it does not
take into account either the substantive values of GI or other substantive
values which could be or are ascribed to M.
The justification of the value of M which takes into account not only simple
evaluations as above but also the value of the goal and other values takes the
form of a complex justification and opens the possibility of conflicts. The most
dramatic are the controversies surrounding the maxim "the goal justifies the
means" in the field of an ethical discourse (Pontara 1974).Complex instrumental
justification appears as "more substantive" than the simple one, because it
necessarily takes into account the substantive values of goals and other relevant
values.
12. Communicative rationality implies the idea of a good communicative
process.
There are two aspects of communicative rationality, discourse-rationality and
decision-rationality. The former is basic, because it states the conditions of
"good" as rational communication, whereas the latter seems derived because
it deals with a decision as a result of a communication process in general, and
of a dialogue in particular.
The idea of rational communication is based on the assumption that there
are some conditions which the communication ought to fulfill to be "good" (in
the meaning of "rational") communication. These conditions formulate the ideal
requirements for the participants of a communicative process in general, and
for a dialogical interaction in particular. The basic idea is a consensus-oriented
social interaction which appears in the form of communication.
Communication has to be directed towards these ideal conditions if it is to
be "rational" in the sense of the communicative rationality. It implies also some
ethical and socio-political postulates which can be attacked from an instrumental
or practical point of view.
Law can be dealt with as a phenomenon of human communicative interaction
and thus the ideas of communicative rationality can be applied to legal decisions.
The communicative and u fortiori the dialogical features of law are, however,
problematic. This is because of the difficulties with applying the sender/receiver
relation to law and to legal decisions. Nevertheless communicative rationality
is used in discussions of legal reasoning and legal decision (Aarnio 1987, ch. 4),
and is, thus, one of the conceptions of rationality which has to be taken into
account in our analysis.

Cf. Habermas 1981; Aarnio 1987, ch. 4; Alexy 1978, Part C, ch. 3. Communication is linked
with the principles of transparency (cf. Dascal 1983, ch. 2).
 The Dimensions of Legal Rationality 107

11. Legal Discourse

13. Legal discourse is a set of linguistic expressions referring to law. This
discourse can also be thought of as a kind of law-related communicative
interaction. The former is an apragmatic approach to legal discourse, the latter
a pragmatic one, and both of them are complementary.
Any definition of legal discourse refers, however, to a concept of law. On
a metatheoretical level this concept is not necessarily defined. Law can therefore
be treated as a set of rules, as a kind of social and/or psychical fact, as a value,
or as a complex phenomenon (Wrbblewski 1986b). Each conception of law at
the level of theoretical analysis determines the area of legal discourse. The central
notion of legal discourse is connected with law treated as a set of valid legal
rules expressed in a legal language and/or, according to a wider notion of law,
as a set of law-making and law-applying decisions.
14. Law as a set of valid legal rules is connected with the idea of a legal system
most currently used in the statutory (civil) law countries.
The rules of law are “general norms” valid according to the accepted concept
of validity which is usually the concept of systemic validity.” Law is treated
either as the law-making process (pragmatic approach) or as its result
(apragmatic approach), and both are qualified in terms of rationality.
The same holds true of the application of law, which in the statutory (civil)
law systems is conceptually and institutionally treated as something different
from law-making. Application of law is treated pragmatically as the process
of decision-making or apragmatically as a decision. Both of them are qualified
in terms of rationality. In the present analysis I do not include law-applying
decisions in the legal system, and keep separate the legal system and law-applying
decisions.
15. Legal discourse is also a discourse of legal sciences which ex hypothesi
deal with law defined on the level of legal science. I exclude them from the present
analysis and limit my observations to law-applying decisions as a not contested
sort of law-related practical discourse. Because of the limited scope of the present
essay, nor will I deal with the practical discourse of law-making.
By “legal decision” in the following text I mean a law-applying decision in
the framework of the statutory (civil) law system.

111. Principles, Values and Rules, and Rationality of Legal Decision

16. In our legal culture a legal decision is expected to be a rational one, that
is to say one justifiable by good reasons. Theoretical analysis of the application
of law in statutory (civil) law systems shows that the final judicial decision,
i.e., the decision disposing of a case in a given instance, is justified by several

12See Wr6blewski 1982a. 1982b, 1985b, 1986c, 198%. Cf. Aarnio 1983, ch. 7, and Aarnio 1987,
ch. 2. Concerning factual validity in ”pragmatic instrumentalism,”cf. Summers 1982, ch. 4. On
validity and derogation, see Alchourrbn and Bulygin 1979, chs. 11-17.
108 lerzy Wrbblewski

"fractional" decisions. First, the decision of validity, of interpretation, of

evidence, of choice of consequences (Wr6blewski 1979b, 1984a). Second, a meta-
decision of sources identifying the arguments which must, may, or may not
be used in justification (Wr6blewski 1984a, 262; Aarnio 1987, ch. 2; Peczenik
1983, ch. 2).
The law-applying decisions are justified by epistemic and axiological premisses
(cf. par. 5). The content of these premisses depends on the type of decision. Each
type of decision has its particular arguments of justification (Wr6blewski 1984a).
In the dimension of internal rationality there is no difference between epistemic
and axiological premisses provided that the decision-maker is consistent in his
decision. Both types of premisses are on an equal footing here. The difference
between epistemic and axiological premisses is of the highest relevance in
external, rationality which deals with assessing the qualities of the premisses
(cf. par. 8).
According to external rationality the quality of premisses dealing with
knowledge of facts is solved by a comparison with the accepted standard of
the relevant science or, in some cases, with the common experience.
When dealing with the knowledge of law, there are some problems concerning
epistemic premisses. Roughly speaking, there are two extreme positions.
According to the first, legal dogmatics is a science of valid law because it
describes its object. Hence, ex hypothesi, no values enter into this description.
According to the second, legal dogmatics is a practical discipline. The solution
of dogmatic problems, as of any practical problems, depends on values and
cannot therefore be treated as a description fulfilling the standards presupposed
in the concept of ~cience.'~
I cannot here discuss this issue, which implies the very notion and/or paradigm
of science in general and the science of legal dogmatics in particular (Aarnio
1983, ch. 10; Aarnio 1984; Krawietz 1978, Part I; Wr6blewski 1987a; Zuleta
Puceiro 1981, chs. 1-3). The easiest way out for the present essay is to treat
knowledge of law as a part of epistemic premisses so far as it does not imply
evaluations. If, however, it is treated as implying evaluations then it belongs
to axiological premisses such as those of law-applying decisions.
Axiological premisses are especially important in the justification of practical
decisions, because they differentiate them from theoretical statements. There
are three basic types of axiological premisses: sensu stricto legal rules, principles
as a special normative category of rules, and values.
18. Sensu stricto legal rules ("SL-rules") are the sub-set of legally valid rules
which is defined as legally valid rules prescribing a determined behaviour in
such a way that the behaviour in question either conforms to the rule or not.
SL-rules have either a direct meaning or an interpretatively stated one.

l 3 Theproblem was raised by Kirchmann 118473 1938 and discussed in Lande 1959, 617-83. Cf.
Aamio 1987, ch. 1; Ferrajoli 1983; Lombardi Vallauri 1981, Part 1, chs. 2-3; Niiniluoto 1981; Peczenik
1966, 1967, 1969, 1983, ch. 7; Pattaro 1983; Ross 1958, pars. 9-14; Scarpelli 1983b; Wrbblewski
1965; Ziembiliski 1983, ch. 2.
 The Dimensions of Legal Rationality 109

SL-rules are valid legal rules according to the accepted concept of validity.
There are various conceptions of the validity of legal rules. The basic concept
of systemic validity used in the practice and in the doctrine of statutory (civil)
law systems treats as valid enacted legal rules and their formal and interpretative
consequences (Wr6blewski 1986b, 1986c; Gardies 1987). The implied rules of
recognition are not always descriptively stated. We thus have to deal with
fuzziness of validity (Wrbblewski 1983c, 326-29).
SL-rules are a sub-set of valid legal rules because not all legal rules have a
directly prescriptive character. It is an open question whether so-called constitu-
tive rules have such a character (Conte 1981a, 1981b; Carcaterra 1979; Robles
1984, ch. 5; Guastini 1982, 1985, Part I, ch. 3). If one denies the prescriptivity
of these rules then they function in justificatory reasoning as a part of the
epistemic premisses and not as a part of the axiological premisses.
SL-rules are arguments justifying the axiological assumptions of a legal
decision, if the ideology of decision-making postulates their use. The ideologies
of a bound judicial decision and of a legal and rational judicial decision assume
such a postulate, whereas the ideology of free judicial decision does not
(Wrbblewski 1974b).
There is a variety of SL-rules referred to in the justification of axiological
premisses: (a) the normative basis of decision thought of as an SL-rule; (b)
SL-rules of recognition, if formulated in the law and determining the concept
of validity, or some part of this concept; (c) SL-rules containing legally binding
directives of interpretation; (d) legal rules of evidence, if any, in a given system;
(e) legal rules as to the choice of consequences, if formulated in the legal system.
The category of SL-rules is not precisely determined. This is so because of
the fuzziness of the legal language the rules are formulated in, and because of
the features of legal interpretation (Wr6blewski 1983c, 322-26). Interpretation
opens various possibilities because of the pragmatic nature of the sources of
interpretative doubts; the various choices of directives of interpretation; the
various ways they can be used; and finally the reference to values that is implied
by any interpretative decision.
The role of the SL-legal rules as justifying arguments is relevant to the internal
rationality of decision. For the decision to be internally rational it ought to follow
the SL-legal rules used as arguments.
The role of the SL-rules as justifying arguments in external, rationality is
more complex. Counting SL-rules as good reasons relies on several assumptions.
First, one should assume that ideology of decision-making which postulates
following the SL-rules.
Secondly, to accept the justificatory role of the SL-rules one ought to accept
their validity, their interpretation, their use in decisions concerning evidence
and the choice of consequences. In each case we are dealing with a decision.
Ultimately thus, calling something externally rational depends on basic
evaluative choices.
SL-rules could also function as RJR. Then their use is concerned with external,
110 lerzy Wrdblewski

rationality. The remarks concerning the use of SL-rules as premisses are applicable
to this case as well.
19. Reference to principles appears as a commonly used part of axiological
premisses. The very conception of principle is, however, far from clear (Alexy
1979). The term "principle" is used in many ways in all languages related to law.
The term "principle of law" (or its synonym) has a whole set of meanings
which can eventually be treated as having some family resemblance. Each
meaning is, however, constructed for some purpose, and in the present analysis
I single out two types of principles which I deal with be10w.I~
20. Positive law principles (PLP) fulfill two conditions: (a) they are legal rules
valid according to the accepted criteria of validity; (b) they are treated as relevant
according to accepted criteria. Notice that (a) does not imply problems other
than those of validity which are common to SL-rules.
The role of the PLP as a justificatory argument is different from the role of
SL-rules only in so far as the PLP prevail over or are more important arguments
than a reference to SL-rules. They prevail when there is a question of conflict
of legal rules. They are more important when they are taken into account in
interpretation.
21. Principles as extra-systemic rules (ESP) are used as justificatory arguments
either when the applied legal rules refer to them, or the practice of justification
with a correlated ideology of the application of law uses them as argument.
The conceptual identification of ESP is based on the definition of a legal
system as a set of valid rules. It will be sufficient to look at two versions of
the construction of a legal system, a strict version and a wider version. In the
strict construction the systemically valid legal rules with their acknowledged
consequences are valid, or, in the operationalist version, these rules are valid
when applied in practice. In the wide construction not only the systematically
valid rules appear but also rules referred to in systemically valid rules (reference
version) or referred to as arguments in the law-applying decision (operative
version) (Wr6blewski 1986c, 1987b).
An acceptance of the wide construction of a legal system in the operative
version makes singling out the ESP superfluous, because all principles referred
to as arguments are ex hypothesi law and belong to the PLP category. The less
radical solution is the reference version, because not all operatively used
principles belong to law in force.
It seems, therefore, that to single out the ESP as an analytically relevant
concept it is necessary to accept a version of the strict legal system construction.
The ESP are used as justifying arguments for legal decisions in statutory (civil)

l4 Wrbblewski 1984b, 6-12, and Wr6blewski 1987c, 141-50. The typology used in the text refers
neither to principles thought of as norms which are different from rules because of the way of
determining behaviour nor to the fact that they can conflict in legal discourse thus requiring notions
of "weighing" and "balancing."This conception roughly corresponds to Ronald Dworkin's and
ceteris pnribus Alexy's ideas and can be treated as belonging to the PNP, ESP or PN principles.
It is, therefore, ambivalent in respect of our conceptual framework.
 The Dimensions of Legal Rationality 111

law systems. They are rules of reference used in part in the formulation of valid
legal rules and in part in justifications of law-applying decisions.
In the following I will leave out the ESP referred to in applied legal rules.
We can treat them as necessary elements for determining patterns of due
behaviour as meanings of the applied legal rules. Their use therefore falls under
the interpretation issue. ESP function by channelling interpretative processes.
The use of ESP as justifying arguments offers very wide possibilities. Because
the principles referred to are usually very vague, ambiguous and fuzzy, and
there are no constraints upon their choice, one can use them or not. If they
are used, then their interpretation is even more free than in the case of an inter-
pretation of SL-rules.
The role of principles in the rationality of decision depends on the kind of
rationality and the type of principle used. For internal rationality the difference
between PLP and ESP is not relevant, since the rationality in question is formal
rationality. For external, rationality, principles of law as justificatory reasons
function in a different way depending on the situation and type of principles
referred to.
Axiological premisses using the PLP refer to specially evaluated SL-rules.
Axiological premisses using the ESP refer to extra-systemic rules. Their choice
might or might not be determined by the applied legal rules which refer to them.
In any case at least the determination of the meaning of the rules referred to
depends on the decision-maker, and this is an evaluative process. Whether the
ESP are properly chosen, interpreted and used determines whether they are
"good' in the sense of the external, rationality of decision.
With the exception of PLP it is highly problematic whether principles could
function as rules of justificatory reasonings.
22. Values are arguments which justify legal decisions although they are often
not explicitly referred to. In the deep structure of justification and rationality,
values justify any practical decision. They are the basis of axiological premisses
as the necessary part of any rational practice and practical decision (Wr6blewski
1979a, 1984a, 1985a; Aarnio 1987, chs. 2 and 4).
The term "value" is here used in the non-cognitivist framework as an abbrevia-
tion of evaluative linguistic statement (Wr6blewski 1981). Evaluative statements
are a semantic category different from descriptive and normative statements.
Pragmatically their function is an expression of mental phenomena other than
cognitive ones. Taking this into account the term "X has v-value" signifies "a
subject P in situation S using the language L expresses that he appreciates X
as being v-valuable," where P is either an individual or collective body.
An evaluative statement of the form "X has v-value" can be justified by
reference either to some axiological system, or to a conditional or instrumental
relation between X and another object Y. There are evaluative statements which
cannot be justified in a given discourse. According to the philosophical
framework accepted here they are neither true nor false in the language of the
d'Iscourse.
112 lerzy Wr6blewski

Relativized value statements (cf. pars. 10, 11)have a controversial semantic

nature. It seems that there are conditions in which some simple relativized
evaluative statements are true or false in the given language and therefore some
evaluative predicates can be used descriptively. But this view can be challenged
in respect of evaluative statements and of the correlated normative statements.
Within the non-cognitivist philosophical framework at least basic non-justified
evaluative statements and, therefore, complex relativized statements, are neither
true nor false in the language of practical discourse. In other words in any chain
of arguments justifying axiological premisses there is, eventually, an axiological
premiss which is, ex hypothesi, not justifiable in the given discourse. If it were
otherwise, an axiological premiss could be reducible to an epistemic one, and
practical discourse to theoretical discourse.
23. Analyzing the justificatory arguments in legal decisions as SL-rules and
principles I have stressed the role of evaluations implied in them. It is thus
exceptionally rare if a value is not referred to in the applied legal rule, for the
explicit formulation of a legal decision refers to a value. This is so in any legal
practice with the exception of that which has an ideology of the free judicial
decision. We assume here an analysis within the ideology of legal and rational
decision.
Evaluations are present in internal rationality and here the only postulate
of proper justification is the coherence of accepted values and their proper use
in justificatory reasoning.
Looking at the relation of the external, rationality and axiological premisses
is more complicated. The categorization of values as good reasons, either
when they are explicitly referred to or implied in SL-arguments and principle-
arguments, presents the same fundamental problem: What are the criteria for
counting some values as good or bad, as acceptable or unacceptable? The basis
for external, rationality is therefore a comparison between the axiology
accepted by the decison-maker and the axiology which serves as the basis for
the categorization. In legal practical discourse external, rationality evalua-
tions are conditioned by several factors. They are intersubjective in particular
audiences if they belong to the same legal ~u1ture.l~
24. There are no problems with internal rationality which deals with the use
of the RJR, provided that these rules are precise enough. This is the case with
formal deductive reasoning. This is not the case with more loosely defined RJR
because they are not particularly restrictive. One could even argue that there
are no rules at all against which any error could be made.
External, rationality which deals with the choice and use of RJR presents a
problem. The justification of RJR depends on the theory of their proper nature
as being deductive, transformative or argumentative. The question then is
whether they are to be chosen, and how their choice and use is to be justified.
I cannot discuss the justification of RJR in detail here, but I have analyzed

l5 "Values are just as intersubjective as a society is" (Aarnio 1987, 220).

 The Dimensions of Legal Rationality 113

this issue elsewhere (Wrbblewski 1983b). The RJR are justifiable by conceptual,
sociological and axiological reasons in a rather complicated structure. Ultimately,
however, the justification of the RJR rests on fundamental axiological choices,
which are not justifiable in a legal discourse, but which can be explained by
socio-cultural factors.
The RJR are either connected with formal rationality or with substantive
rationality. The former is the case when the RJR are treated as deductive, being
an ”interpretation” (in a logical sense of this term) of formal calculi. The latter
is the case if the RJR are transformation and/or argumentation rules.16
25. In the justifications of legal decisions in statutory (civil) law systems there
is a recurring reference to the ”will of the law-maker.” The law-maker referred
to is prima facie treated in three ways: as the historical law-maker, as the
contemporary law-maker, and as the rational law-maker.
One can easily demonstrate that reference to the law-maker as a present or
past person is a persuasive argument for making some sort of reference to
elements of the historical or present context of law-making. In fact, however,
reference to the law-maker includes these features which are not real, but are
proper to a rational law-maker.
There are two constructs of the rational law-maker.” Rational, sensu stn’cto,
law-maker is the internally rational law-maker. He is consistent and coherent,
and it can be assumed that the law applied is also consistent and coherent.
The perfect law-maker is the law-maker who fulfills the expectations of external
rationality. He is externally, rational having properly justified epistemic premisses
and axiological premisses and his reasoning fits the criteria of external2rationality.
These features of a perfect law-maker are presupposed when talking of the
justifying arguments of the law-applying decision-maker.
The reference to the law-maker’s will is, therefore, to be understood as a
reference to some version of the construct of the rational law-maker. The rational
law-maker is relevant when looking at the features ascribed to the applied legal
rules as a part of the legal system, and especially when looking at the consistency
and coherence of that system.
Reference to the construct of the rational law-maker is used positively or
negatively. The former is the case when the ”will” of the rational law-maker
serves as a support for justifying the best among many possible decisions. The
latter is the case when it is used for elimination of the wrong decision.
”The rational law-maker” is a catchword covering a variety of arguments
in any ideology of law-applying in which the separation of law-making and
law-applying is presupposed; it is expected that the latter has to be rational,
and proof of rationality is justifiability. This is the case of the actually dominant
ideology of a legal and rational decision in statutory (civil) law systems.

l6 Cf. note 9.
l7 The most elaborated analysis is in Nowak 1973, chs. 3-9.
114 Jerzy Wrbblewski

IV. Concluding Observations: Rationality and Legitimacy

26. The three conceptions of rationality which we have discussed, i.e., formal,
instrumentally based substantive and communicative, are instances of the main
possible types of rationality conceptions: structural rationality, content rational-
ity, and pragmatic rationality. Each of these types has an analogue in the main
aspects of language or scientific reflection on language, syntax, semantics and
pragmatics. Structural rationality deals with the deep structure of rationality
conceived of as justifiability. Content rationality deals with substantive
arguments referred to as justifying reasons. Pragmatic rationality deals with
the functions of justification in human interaction.
27. In the light of the conceptual framework proposed here, legitimacy issues
are strictly related to rationality issues if legitimacy refers to the law-making
decision or to law-applying decisions and, ultimately, to the law as the content
of the former.
In discussion concerning legitimacy one should answer some basic questions:
(a) Legitimacy of what: of law in abstract, of law-making decisions, or of
law-applying decisions? (b) Why is the legitimacy issue raised, and in what
circumstances and/or conditions does it become important? (c) Legitimacy for
whom: the parties concerned, the legal community in a strict or broad sense,
the particular ideal audience, or the universal audience? (d) How is legitimacy
made, i.e., which kind of arguments are made or expected, and what is the
surface and/or deep structure of justification?
All these questions could be asked in relation to any rationality and/or
justification conception. It seems, however, that "legitimacy" is not synonymous
with "justification" or "rationality" in the current uses of these terms.
Legitimacy concerns law, law-making and/or law-applying decisions (the "of
what" question), directed to various audiences, and the "for whom" question.
It is focused on answering three questions: Why is the law "good in the more
or less definite meaning? Why should the law be obeyed, applied, accepted?
etc. How should it be made and applied, that is to say, how should the proper
decisions in the sense of properly justified decisionsbe made? Legitimacy answers
are, thus, thought of as external justifications where the justificatory reasons
deal with the axiological premises as good reasons for decisions.
The legitimacy issues do not deal with internal formal justification, do not
concern the rules of justificatory reasoning (the external, justification).
Legitimacy appears as one of the sub-classes of external, justification using
mostly the conceptions of rationality based on instrumental relations or the ideas
of communicative rationality writ large.
University of Ybdi
Chair of Law and State Theory
59a Narutowicza
90-131 Ybdi
Poland
 T h e Dimensions of Legal Rationality 115

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