A Model of Rational Law-Making

A Model of Rational Law-Making
Author(s): JERZY WRÓBLEWSKI

Source: ARSP: Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and
Social Philosophy, Vol. 65, No. 2 (1979), pp. 187-201
Published by: Franz Steiner Verlag
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BY JERZY WROBLEWSKI, LODZ
Introduction
1. The purpose of the présent essay is to construct a model of rational
law-making. The model is, however, restricted to enactment of general
legal rules and, therefore, it does not include either making law in a cus
tomary way or law-making by disposing of concrete cases1. The para
digm of law-making here is, henee, enactment in statu tory law system.
Law-making as any activity is analyzed within a certain theoretical
framework. The fallacy of dealing with brute facts is obvious. Legal
theoretical assumptions necessary to deal with law-making in the présent
essay are rather simple: law is thought of as a set of general rules chan
nelling human behaviour according to predetermined patterns; law is

formulated in a species of natural language, and opérâtes by motivating
behaviour and shaping attitudes of persons which understand the rules
formulated in this language; law-making is a goal-oriented activity and
should be rational.
In the fîrst part of the présent essay I formúlate some comments
concerning the concept of rationality, and in the second part I outline

a model of rational law-making. The last part of the essay deals with
some issues of an optimalization of law-making.
I. Concept of Rationality
2. Rational behaviour is a purposive behaviour in which the acting sub

ject makes a choice of means to achieve his end and uses knowledge of
relevant phenomena and assumes determined axiological criteria of
choice2. The paradigmatic example is any technical activity of construct
Cf. J. Wróblewski, "Society of the Future and the Rationalization of the Law
making", Rivista intern, di filosofía del diritto, 1,1978, points 9, 10.

Cf. e.g. J. Simon, Models of Man, New York - London 1957, chapt. 15 ; G. Gott
lieb, The LogicofChoice, London 1968, p. 25 sq., 154 sq., 166 sq.; P. A. Freund,
On Law and Justice, Cambridge 1968, chapt. 5. L. Nowak, "Teorie racjonalnego
zachowania jako teorie modelowe", Studia metodologiczne 7, 1970; id., Proba
ARSP (Archiv für Rechts- und Sozialphilosophie), Bd. LXV/2 (1979)

© Franz Steiner Verlag GmbH, D-6200 Wiesbaden
188 Jerzy Wróblewski
ing some artefact fulfillingpredetermined conditions.

Human behaviour is "internally rational" if it is consistently based on
the knowledge and axiology of the acting subject. "External rationality"
of behaviour is based on the knowledge and axiology of an observer, who
is not the acting subject. If the observer's knowledge and/or axiology are
significantly différent from those of the acting subject, then the internal
rationality of behaviour would not coincide with its qualification as ex
ternally rational3.
3. Rationality of behaviour is a postúlate in technics and in "sociotech

nics" as well. There are, however, deep différences in dealing with
rationality of social behaviour. The complexity of social phenomena and
the axiological controversies make agreements concerning external
rationality in "sociotechnics" much more problema tic than in technics.

Our knowledge of relevant sociopsychological phenomena in spite of
many tentatives of the empirical sociology, has no features, which charac
terize the (natural) sciences and the technics based on them. The noto
rious problem of the différences between the (natural) sciences and the
humanities has, as one of its conséquences, the différence between
technics and "sociotechnics".
No less relevant are the disagreements concerning évaluations in various
situations and in various social groups. In spite of some commonly shared
values characteristic for a given culture there are many différences of

opinions about purposes and functions of State and law, which are rele
vant for law-making. There is also a problem of the choice of means for
achieving a given purpose, because in social behaviour not only an in
strumental évaluation is relevant, but also a non-relativized évaluation is

taken into account.
Generally speaking the status of our knowledge relevant to "socio

technics" is lower than in technics. Neither in détermination of general
regularities, nor in measuring the effectiveness of purposeful behaviour
one can compare these two spheres of human acitity. The technical pro
gress in the era of the présent scientific-technological révolution overrides
futurological prophecies; this is not, however, the case in the area of the
"sociotechnics".
metodologicznej charakterystyki prawoznawastwa, Poznan 1968, part II, chapt.

II, III,V. A. Delorme, Dyrektywy celowosciowe a normy spoteczne, Wroclaw
1975, chapt. V.
Cf. J. Wróblewski, "Legal Décision and Its Justification", Logique et analyse
53/54, 1971, p. 412.
A Model of Rational Law-Making 189
II. Model of Rational Law-making
4. According to the assumptions referred to above (point 1) law is to be

thought of as a means of social control. There is no need to specify the
characteristics of law as a special kind of social control, but one has to

assume that it is a product of a law-making activity. This means that law
making could not be treated as a discovery of any pre-existing natural
law rules, but it does not mean that law-making is a pure fiat. Historical,
comparative and theoretical analysis give ample support to the view that
law-making dépends on a rather complicated set of social facts, among

them on the law-maker's attitudes expressing his historically and cultural
ly bound knowledge and évaluations.
Any use of legal institutions for achieving assumed purposes requires
at least three types of actions: (a) rational law-making according to an
accepted policy of the law-making; (b) rational application of law accord
ing to some assumed policy of this type of activity; (c) rational "realiza
tion" of law, that is the use of rational ways of executing law-applying
décisions or more broadly the use of compétences assigned to some
legal subjects. Rational law-making is, thus, only one of the conditions of
a rational use of legal institutions.
5. Law-making can be analyzed from various points of view.
Law-making can be treated as a process starting from informal Stimuli
of needs or from formal initiatives of law-making, going through all

procédures to an évaluation of a final draft of proposed enactments. This
can by analyzed within an intricate framework of factors of social
process
environment which determine epistemic and axiological attitudes in
and content of enacted rules. This is the way of

fluencing law-making
from a functional point of view, which can be ex
treating law-making
pressed in a functional model of law-making.

law-making agency as a system of transforming informations
Treating
is the to construct an informational model of law-making. Input of
way
this is constituted by various informations concerning facts, rela
system
tions and societal values, the Output is an enacted normative act.
In the présent essay a model of the law-making singles out essential

to
Problems which ought to be solved by the law-maker if his activity has
be rational. This model can be treated as a définition of the term "ratio
nal law-making" by determining the conditions, which have to be fulfilled
for making law rationally.
Characteristics of rational law-making are analyzed on various levels of
abstraction. On the highest level a model of rational law-making would
be an application or an interprétation of praxeology. There are praxeo
logical directives of efficient action, and by définition every rational

action should be governed by them. On the lowest level of abstraction
one has to do with an enacting of a concrete norm as an instrument to
achieve a given purpose on the basis of an assumed level of knowledge and
within a given axiology, e.g. how to prevent a given type of socially dan
gerous behaviour with the means of statutory penal régulation. The
model I am going to construct belongs to the middle level of abstraction,
determined by the content of its elements enumerated below (point 6).

The constructed model is normative in the sense, that it points out what
the law-maker should take into account if he is a rational law-maker.
Since rationality is the assumed postúlate of his behaviour, the model

precizes how the law-maker should act. The model in question can also
be used as a critérium to evalúate the concrete law-making behaviour.
A model of rational law-making can be treated also as a détermina
tion of characteristics of a rational law-maker. If so, then we should
mention that the latter can be also constructed by making explicit as
sumptions of legal reasoning using the rational law-maker as an argument
for solving some problems, e.g. of the interprétation of law or systema
tization of legal provisions4. It seems that the two ways of constructing
a model of rational law-maker are complementary.
6. Generally speaking our model of rational law-making consists in singl

ing out five elements:
(a) Determination of a purpose of law-making activity in a way suf
ficiently precise to a choice of means of its achievement.
(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 conséquences (i.e. détermination of the
Potential means to the purpose).
(c) Sélection of potential means to the purpose which can be used as
legal instruments (i.e. détermination of potential legal means to the pur

pose).
(d) Determination of a legal norm as the instrument for achieving the
purpose in question, i.e. the choice of a concrete legal mean.
(e) Enactment of a general legal rule, as the final resuit of law-making
activity.
Cf. e.g. N. Bobbio, "Le bon législateur", Logique et analyse 53/54, 1971; L. No
wak, Interpretacja prawnicza, Warszawa 1973.
7. The first element of the model is détermination of a purpose in a way

sufficiently precise to a choice of means for its realization. These purpo
ses are thought of as values according to the axiological System accepted
by the law-maker.
The purposes in question in the simplest case are given to the law
maker, who has only to decide whether according to his knowledge and
the accepted general axiological framework there are any social means to
realize them (cf. point 8) and, if so, whether any legal instruments can be
used (cf. point 9). In the more complicated cases the law-maker plays an
active role in formulating the axiological system in question taking into
account the potential means.
There are various typologies of purposes, but I will not describe them
because of a limited scope of the présent paper5. Any purpose can be
described as a "valuable situation" and if a law-maker decides that he

ought to achieve this purpose, then his decisión can be expressed in a
standard formula "One ought to achieve situation S". This decisión can be
justified either by a direct reference to an accepted axiological system in
a systemically relativized norm ("One ought to achieve situation S ac
cording to the axiological system AS") or by an instrumental relativiz
ation ("One ought to achieve situation S as a means to the end E") or by
a conditional one ("One ought to achieve situation S as a necessary condi
tion of the end E"). It is patent, that instrumentally and conditionally
relativized norms are not as final justifications as the fírst one and that,
therefore, eventually these norms can be based on systemically relativiz
ed norms6.
The choice of purpose, henee, is determined by the accepted axio
logical system, but the degree of détermination has many varieties de
pending on the characteristics of purpose and the features of the axiolo
gical system in question. Practically this choice is also dépendent on the

law-maker's knowledge concerning the possibility of realization of the
the rational law-maker does not strive for something which can
purpose:
not be realized.
8. The purpose of the law-maker should be determined in a way suffi

ciently precise for a choice of means for its realization. This determina
Cf. J. Wróblewski, "Model racjonalnego tworzenia prawa", Panstwo iPrawo 11,

1973, p. 6-8.
Cf. J. Wróblewski, "Systematically Relativized Statements", Logique et ana
id., "Kryzys ekologiczny a niektóre problemy metaetyki i aksjo
lyse 81, 1978;
logii ogólnej", Etyka 13,1974, p. 157-162.
tion is based on the knowledge of regularities between the type of

situations the purpose belongs to, and the type of phenomena which can
have those situations as their conséquences. Thus the potential means to
the purpose are determined.
Knowledge concerning empirical relations between these two types of

situations consists in formulation of several types of regularities appear
ing as the "laws" of concrete empirical sciences. There are causal, pro
babilistic, statistic and other types of relations in question. The pa
radigm relation for the sciences relevant to law-making is the causal
one. Not entering here in the rather controversial issues of causality let us
assume, that one can identify a set of factors treated as "the cause" of an
other set named "the effect". The standard formula for such a relation in
a given area of reality is "C -> E" provided some conditions are fulfilled.
The "C -*■E" formulas can be used in science for prédictions. They
can be used also after some transformations to formúlate a basis for in
strumental directives and then they function as "anancastic statements"7.

There are many rather controversial problems concerning the way in
which one can use the knowledge of causal regularities for formulating
instrumental directives. Ihe common sense intuition is, however, quite
evident: if the C -> E relation occurs, then to get the resuit E one has to
use the cause C. If the resuit is the purpose of our activity (P) and the
cause C is the mean M for attaining P, then there is a correspondence be
tween "C -> E" and "M -*■P" formulas. "M P" is read "to achieve P
one ought to use M" or "if one wants to achieve P one ought to use M".
There are several difficultés with instrumental ought expressed in any
teleological directive and its relation to the will of the acting subject,
especially if one takes into account that this means a reference to a
rational will8. For the présent we assume that the instrumental direct
ive used by the rational law-maker can be read in any manner provided it
expresses an instrumental ought relation between M and P, which is
meaningful in a given language. The instrumental directive expressed in

a normal formula "M ->• P" is justified, if the relation stated in the
formula "C -*■ E" is true in a given language9.
Putting aside the philosophical problems of the relation between the
"is" (the formula "C -> E") and the "instrumental ought" (the formula
G. H. von Wright, Norm and Action, London 1963, chapt. I, point 7.

Cf. E. Leniewicz, Dyrektywy praktyczne, Warszawa 1971, chapt. I, point 6.
Cf. ut supra, chapt. II.
"M -> P") one should stress, that in the practical activity as a rule there
is more than one M instrumentally fit to get P and that theuse of any M
does not produce only one effect which is thought of as P, but also several
side effects SE wich are expected by the person using M(SEk) or un
known by him (SEuk). Henee for each M we have to do with a relation
"M„ -*■P+ SEk + SEuk" which is read: "For realizing P one ought to
use Mn taking into account the known side-effects SEk and the risk of
unknown side-effects SEuk". There are several M which ex hypothesi
can be used to realize P and the différence between them lies in the
SEk, which are "costs". The factor SEuk by définition is unknown and
means a risk inherent in any action if there is no complete knowledge
of its results, and this is the standard situation of any social action in the
présent status of knowledge.
The list of ail possible means for P is, then, an enumeration of the
Potential M to the purpose P.
9. We assume, that the law-maker has to choose between several means M
to the purpose P. To map out all the possible M he uses his knowledge
concerning the directives formulated according to the schéma "M ->
P + SEk", because if he has decided to act, then he has to take the risk
of the unknown conséquences (SEuk). The knowledge, thus, diminishes
the risk and ex hypothesi a choice of M is made according to "costs",
because the means-end relation is the same for every M. The choice of
means takes into account at least two types of criteria of preference for
evaluating the SEk linked with particular M.

Firstly, there are instrumental criteria assessing efficiency of achieving
the purpose. These criteria deal with "effectiveness", "costs", "time"
etc. required to obtain P by using particular M. In some areas of social
activities these criteria are linked with a use of numerical scales.

Secondly, there are non-instrumental criteria assessing use of particu
lar means. Instrumental values in some situations can "contradict" some
non-instrumental ones, which are to be preserved according to the axio
logy accepted by the décision-maker. In those situations the SEk would
mean to act against accepted non-instrumental values.
The use of these two groups of criteria serves two purposes: compar
ing the "costs" to the value of purpose shows whether it is worth while
to achieve it; if the answer is positive, then there is the prob lern of the
choice of menas. The rational law-maker has to answer three questions:
(a) whether legal mies are proper means from an instrumental point of
view; (b) whether legal mies are proper means from the point of view of
non-instrumental values which the law-maker treats as binding him; (c)

what is the relation of legal rules to other instruments of social policy, if
used to the same goal as these rules?
The answer to the first question is based on the instrumental charac
teristics of legal régulation. The needed law is effective law and henee the
limits of the legal régulation are determined by the boundaries of its
effectiveness. Not all areas of human behaviour can be rationally regulat
ed by law, because the minimum condition for such régulation is the
possibility of Controlling this behaviour by legal measures. The principie
cogitationis poenam nemo patitur can be interpreted not only as an ex
pression of the évaluation of the liberty of thought, by also as an assess

ment of an impossibility of any effective control of human thoughts.
There are, however, some developments opening rather appalling vistas of
making this control possible.

The answer to the first question has to take into account also the
known side-effects of any legal régulation, such as the costs of the appli
cation of law including the opération of decision-making machinery and
the Organization of the exécution of décisions, the costs of éducation of
the officiais applying law, the costs of the material infra-structureof the
opération of law, the social costs of various kinds of sanctions etc.
The answer to the second question dépends on the content of the
axiological system accepted by the law-maker. One source of this system

are the évaluations of the sociopolitical forces which the law-maker feels
to be representing, the other are the évaluations of the law-addressees he
has to take into account. The former are consciously accepted or inter
nalized by the law-maker; the latter he has to take into account at least
because of pragmatic reasons: the evaluative attitudes of the addressees
are relevant for the effectiveness of law and, therefore, there is a degree
of tolérance determining how much the law-maker can shape them
through educational impact of law.

The answer to the third question is based on the assumption that law
making is a part of a broader social policy. This assumption goes beyond
the model of rational law-making, but it seems hardly possible to speak
about rationality in question without considering it within a broader con
text of purposeful network of ail social controls used in a given society.
We consider, thus, rational law-making as a part of a rational social
policy. Rationality of law-making in a society where there is no social
policy is weaker than in those societies in which ail means of social
control can be put together within social policy. The existence of such
social policy is, however, always to be determined in concrete situations.

The potentialities of a rational use of legal instruments depend, henee,
on technical and organizational potentialities of the general social policy
and on its axiological foundations. The use of law, e.g., can be aeeepted
within one social policy and rejected by another or combined with a use
of other instruments of social control.
The answers given to the three questions enumerated above determine
the potential legal means. The potential legal means are outlined here in a
very general manner: legal rules are assessed as suitable means to assumed
purposes taking into account the instrumentalities of law, aeeepted axio

logy and the context of social policy as a whole.
10. The next element of the model of rational law-making consists in
détermination of legal norms which are to be enacted. This means that
the law-maker has to choose the proper form of legal régulation and the
best formulation of legal rules.
In continental statutory law systems there are three traditional forms
of legal régulation, that is civil, penal and administrative. This tripartite

division does not seem adéquate now and, henee, there are various com
plex forms of legal régulation. There is, further, the différence between
substantive law and procédural law régulation which is not irrelevant to
the opération of legal rules. These forms are related with différent consé
quences of the lack of their observance.

Under the "form of legal régulation" I also mean the choice of the hier
archical level of the enacted legal rule. The hierarchy of all continental
legal Systems is more or less differentiated and it is not indifferentfor the
operative qualities of an enacted norm to which level it belongs to, al
though there is no strict dependence between the hierarchical level and

effectiveness. There are several advantages on placing the norm in ques
tion on a higher level, but this has some known disadvantages,too, and
the criteria of choice are linked not only with the instrumental and non
instrumental values of a given form of legal régulation, but also with the
political dependence of the law-making processes.

The second set of problems consists in the best formulation of a legal
norm or of a legal institution thought of as a set of norms. There are
many directives of the technique of formulation of legal texts. These
directives are thought of as tools helping the law-maker but they are
sometimes conflicting and rather single out possible solutions than decide
concrete issues. It seems that a study of these directives is a rather neg
lected area in the theory of rational law-making and is treated as a mere
routine technique in the shadow of wider issues. It is no place here, how

ever, to formúlate these directives10. Many operative qualities of legal
norms dépend directly on the ways in which they are formulated. One of
the essentials of the opération of law is the understanding of legal texts
and many problems of the meaning of these texts are strictly related with
their formulation within a context of legal language, legal system the
norm belongs to and the functional context it opérâtes in11.
It is important to see links between the détermination of potential

legal means (comp, point 9) and the formulation of legal norms we are
now dealing with. It would be fallacious to assume, that one can analyze
potential legal means without having in mind alternative formulations of

legal norms. It is not justifíed, henee, to treat the former as a matter of
policy choices and the latter as a purely technical issue, which can be
kept strictly separated and ascribed to unconnected agencies of law-mak
ing.
11. The last element of the model is an enaetment of a general rule. This
element is treated either as a purely procédural step being the final resuit
of a law-making activity, or as a legal institution in a given state. The

former conception does not require any commentary here, the latter be
longs to an analysis of the institutionalization of law-making in various

legal systems. The enactment procédures should be consistent with the
model of a rational law-making, i.e. the procédures of preparing a draft

and of transforming it into a valid law should take into account the solu
tions which the rational law-maker should take.
III. Optimalization of Law-making
12. The constructed model of rational law-making has a normative fonc

tion if used for directing the law-maker towards making his activity more
rational from an external point of view (comp, points 2,5). This use of
the model in question is called here "optimalization of the law-making".
There are three dimensions of this optimalization: dimension of axiol
ogy, dimension of content and dimension of praxeology.
Cf. K. Opatek und J. Wróblewski, Zagadnienia teorii prawa, Warszawa 1969,

chapt. VI, point 3.
Cf. J. Wróblewski, "Semantic Basis of the Theory of Legal Interpretation", Lo
gique et analyse 21/24, 1963, p. 410-413.
13. Optimalization in the dimension of axiology consists in making the

évaluations of the law-maker consistent with those the person evaluating
the law-making externally accepts as valid. The évaluations of the law
maker concern the choice of purposes, and instrumental and non-instru
mental values of legal norms used as means. The axiological dimension of

optimalization concerns the purposes and non-instrumental évaluation of
because instrumental évaluation - to our -

means, according typology
belongs to the dimension of content (comp, point 14).

The axiological dimension of optimalization has no fixed frame of
reference, because the non-instrumental values relevant for the rational
law-making are controversial. Choice of purposes and non-instrumental
évaluation of means taking into account also values of the side-effects
calis for the discourse in which various arguments are used, but there is
no possibility of vérification of the basic values when res ad principia

venit. We have to do here with political and/or ethical discourse12.
The factor diminishing the disagreement concerning the axiological
optimalization is the homogeneity of relevant evaluative attitudes guaran
teeing common évaluations of the law-maker and the person qualifying
the law-making activity.
14. Optimalization in the dimension of content concerns the knowledge
the law-maker should use according to the person qualifying the law
making as externally rational. The evident assumption of the rational
law-making is that the effectiveness of the law based on the science cete
ra paribus will be higher than without such basis.

Roughly speaking the science in question is used in three ways. Diag
nostic use of science concerns an analysis of the existent situation relevant
for rational law-making. This situation, by hypothesis, is evaluated as

unsatisfactory in such a degree, that it is better to take the risk of the
law-making activity (SEuk) and all the costs connected with the new law
(SEk) (comp, point 8) than to tolérate the existing status quo. Prédictive
use of science concerns the mapping out of the future status of a society
characterized by the stability or change of situations relevant for the law

making. This prédiction takes into account the lack of any purposeful
intervention and the alternative interventions by various means of social
policy, including the law-making. Closely related with prédictive use is
This discourse clearly belongs to l'empire rethorique, cf. C. Perelman, L'em
pire rhétorique, Paris 1977, p. 177.
instrumental use of science. Then various means of social policy are for
mulated on the basis of scientifïcally stated regularities (comp, point 9).

There is, however, no adequacy between "pure science" and "instru
mental science", because not all anancastic statements can be transform
ed into instrumental directives (comp, point 8).

There are various areas of science relevant for the rational law-making,
but not all of them play the same role. Generally speaking, the law
making calis for the use of différent sciences, such as legal sciences,
psychology, sociology, social psychology, semiotics, cultural anthro
pology, history, économies, administrative sciences and so on. The use
of a particular area of a science dépends, of course, on the characteristics
of the field of legal régulation. Only nomothetic sciences stating regu

larities can be used in a prédictive and instrumental way, whereas for a
diagnosis also idiographicsciences have some value; only some regularities
stated in sciences can be used for prédiction if determined conditions for
predicting are fulfilled, which is not always the case in the humanities;
only some prédictions can be used in an instrumental way depending on
relevant axiology and operative qualities of the means used in social
policy.
Optimalization of law-making in the dimension of content is possible
only so far, as the relevant areas of science are developed in a satisfactory
way. It is patent, that this is not the case today and, therefore, there are
objective limits of this kind of optimalization. One should add, however,
that even this limited science is not always used in füll extent.
The factor diminishing a possible discrepancy between the rationali
zation of the law-making from the internai and external point of view is
obvious — the law-maker should have the same scientific knowledge in
the areas relevant for his activity as the person externally qualifying it as
rational. This means the degree of a scientific expertise of the law-maker
which can be assured by proper institutional means (comp, point 16).
15. Optimalization in the praxeological dimension deals with efficiency
of law-making measured by its duration, complexity, involvement of
number of participants, the costs of work and equipment and so on.
There are, however, no easy criteria to determine the optimum e.g. of the
duration of the law-making process. It is evident, that there are two ex
tremes to be avoided: one is a hasty enactment without any proper prép
aration assuring rationality, the other is a process which takes such a
long time, that the situations which had stimulated law-making have
already changed. The optimum is situated between these extremes and is
relative to the features of legal rules depending on the area of régulation

and the complexity of a normative act consisting of enacted rules.
The praxeological dimension of optimalization is strictly related with
the procédures of law-making which are rather differentiated according to
the hierarchical level of normative acts. Procédures, however, do not
determine the time needed for law-making in concrete situations, espe

cially if the issue is a matter of policy where contrasting views with prac
tically equal forces are opposed.
There are no easy criteria to assess the optimalization of law-making
in the praxeological dimension and to point out how to avoid the discre
pancies between its évaluation from an internal and external point of
view. Praxeological optimalization conflicts with other dimensions, if the
law-making requires lengthy scientific researches which delay an enactment
of norms or if axiology of the system requires lengthy consultations with
many social groups of alternative drafts, and the norms which have to be
made are feit as very urgently needed. In solving these conflicts one can
see the conflicting idéologies, e.g. of démocratie law-making and of
technocratie law-making.
16. These three dimensions of optimalization of law-making are linked
with various institutions of law-making. The problem, however, how to
safeguard the best conditions for optimalization cannot be discussed here
and, therefore, I will formúlate only two comments.
Firstly, the relevant role for optimalization is played by a class of sub

jects partieipating in the law-making. If the démocratie values of parti
cipation are accepted,theninthe axiological dimension the représentation
of public opinion is essential in the détermination of the main stratégies
of choosing the goals and in an évaluation of proposed means. The opti
malization in the dimension of content calis for a narrower group of par
ticipants based on expert knowledge. The optimalization in the praxeolo
gical dimension is linked with an efficient group of law-makers using the
praxeologically best procédures. These procédures should compromise all
three dimensions of optimalization and there exists a great variety of in
stitutions closely linked with concrete characteristics of the political
Systems of particular states.
Secondly, there is the recurring problem of the role of science in law

making. Generally speaking the influence of science can be reduced to
three main directions: (a) éducation of persons who formally or infor
mally influence the law-making; (b) préparation and analysis of drafts of
the normative acts; (c) participation in the shaping of public opinion con
cerning law-making. The influence of science requires a fulfilment of two

conditions: firstly the science should have informations relevant for the
law-making, and, secondly, the influence of the science in the décisive
phases of the law-making process should be guaranteed by proper institu
tions. The formercondition dépends on the results of scientific researches
in the areas needed by the law-making, the latter dépends on shaping of
proper institutional mechanisms and on the functioning of the political
system of the State.
17. The model of the law-making outlined in the présent essay and the
dimensions of the optimalization are more or less evident. One can apply
here by analogy what has been said about praxeology by its founder:
"the most important praxeological observations are like tentatives to
make clear in a systematic and possibly proper manner the intuitive

knowledge, which had been conquered by the humanity by observing
through ages the conditions of the effîcacy of actions"13.
JERZY WROBLEWSKI
Summary
A model of rational law-making deals with enactment of general norms in

statutory law systems. The model singles out five types of problems
which ought to be solved when law-making has to be rational. The model
in question has normative function when used for directing law-making
towards optimalization of this activity in the dimension of axiology, of
content and of praxeology.
13 z uprawiania
T. Kotarbiáski, "O pozytkach ptynacych prakseologii", Materiafy
prakseologiczne 20, 1965, p. 6.
JERZY WRÓBLEWSKI
Un modèle de la création rationnelle du droit
Résumé
Un modèle de la création rationnelle du droit concerne l'édition des

normes générales dans les systèmes continentaux. Le modèle détermine
cinque types des problèmes lesquels doivent être résolus quand la création
du droit doit être rationnelle. Le modèle a une fonction normative quand

il est utilisé pour l'optimalisation de cette activité dans la dimension axio
logique, substantive ou praxéologique.
JERZY WROBLEWSKI
Ein Modell der rationalen Rechtserzeugung
Zusammenfassung
Ein Modell der rationalen Rechtserzeugung bezieht sich auf die Erzeugung
der generellen Normen in den Gesetzesrechtssystemen. Das Modell deter
miniert fünf Typen der Probleme, die entschieden werden sollen, wenn
die Erzeugung des Rechts rational sein soll. Das Modell hat eine norma
tive Funktion, wenn es für die Optimierung der Rechtserzeugung in der

axiologischen, inhaltlichen oder praxeologischen Dimension verwendet
wird.

A Model of Rational Law-Making

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A Model of Rational Law-Making

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A Model of Rational Law-Making

Author(s): JERZY WRÓBLEWSKI

BY JERZY WROBLEWSKI, LODZ

1. The purpose of the présent essay is to construct a model of rational

law-making. The model is, however, restricted to enactment of general

nelling human behaviour according to predetermined patterns; law is

concerning the concept of rationality, and in the second part I outline

2. Rational behaviour is a purposive behaviour in which the acting sub

relevant phenomena and assumes determined axiological criteria of

choice2. The paradigmatic example is any technical activity of construct

making", Rivista intern, di filosofía del diritto, 1,1978, points 9, 10.

ARSP (Archiv für Rechts- und Sozialphilosophie), Bd. LXV/2 (1979)

ing some artefact fulfillingpredetermined conditions.

3. Rationality of behaviour is a postúlate in technics and in "sociotech

rationality in "sociotechnics" much more problema tic than in technics.

technics and "sociotechnics".

No less relevant are the disagreements concerning évaluations in various

situations and in various social groups. In spite of some commonly shared

values characteristic for a given culture there are many différences of

achieving a given purpose, because in social behaviour not only an in

strumental évaluation is relevant, but also a non-relativized évaluation is

Generally speaking the status of our knowledge relevant to "socio

metodologicznej charakterystyki prawoznawastwa, Poznan 1968, part II, chapt.

II. Model of Rational Law-making

4. According to the assumptions referred to above (point 1) law is to be

characteristics of law as a special kind of social control, but one has to

law-making dépends on a rather complicated set of social facts, among

Law-making can be treated as a process starting from informal Stimuli

of needs or from formal initiatives of law-making, going through all

and content of enacted rules. This is the way of

pressed in a functional model of law-making.

In the présent essay a model of the law-making singles out essential

logical directives of efficient action, and by définition every rational

achieve a given purpose on the basis of an assumed level of knowledge and

model I am going to construct belongs to the middle level of abstraction,

determined by the content of its elements enumerated below (point 6).

the law-maker should take into account if he is a rational law-maker.

Since rationality is the assumed postúlate of his behaviour, the model

be used as a critérium to evalúate the concrete law-making behaviour.

A model of rational law-making can be treated also as a détermina

tion of characteristics of a rational law-maker. If so, then we should

mention that the latter can be also constructed by making explicit as

sumptions of legal reasoning using the rational law-maker as an argument

for solving some problems, e.g. of the interprétation of law or systema

tization of legal provisions4. It seems that the two ways of constructing

a model of rational law-maker are complementary.

6. Generally speaking our model of rational law-making consists in singl

ficiently precise to a choice of means of its achievement.

(b) Determination of empirical relations between the type of situations

Potential means to the purpose).

(c) Sélection of potential means to the purpose which can be used as

legal instruments (i.e. détermination of potential legal means to the pur

7. The first element of the model is détermination of a purpose in a way

described as a "valuable situation" and if a law-maker decides that he

logical system, but the degree of détermination has many varieties de

pending on the characteristics of purpose and the features of the axiolo

gical system in question. Practically this choice is also dépendent on the

8. The purpose of the law-maker should be determined in a way suffi

Cf. J. Wróblewski, "Model racjonalnego tworzenia prawa", Panstwo iPrawo 11,

tion is based on the knowledge of regularities between the type of

the purpose are determined.

Knowledge concerning empirical relations between these two types of

strumental directives and then they function as "anancastic statements"7.