In the previous Chapter, it was depicted how the validity of a judicial decision can be assessed in different terms. According to Wróblewski, the conceptions of the correctness of decisions are related to the ideologies of
332 Siltala. 2011. 77.
333 Conway. 2012. 126. Alexander – Kress. 1995. 313-314.See also Amaya, who divides theories of coherence to “strong” and “weak” where the former claim that coherence is both necessary and sufficient condition of legal justification, and the latter claims that coherence is a necessary, but not necessary condition. Amaya. 2011. 307.
334 See Aarnio. 2011. 165-170 and Siltala. 2011. 61-67.
335 Raitio. 2013. 107.
336 Ibid. 108.
judicial application of law. Interpretative directives can be grouped in more or less coherent sets which constitute whole normative theories or ideologies of interpretation. These ideologies not only formulate the directives of interpretation but fix the values which the interpretation should implement.
The classification is based on fundamental values presupposed by them.337 In the ideology ofbound decision-making, the correctness of a decision is identified with the consistency of the decision with law. In the ideology offree judicial decision-making, the correct decision is the one which gives the best decision for the concrete case. There is also the ideology oflegal and rational decision-making, where the correct decision implements the value oflegality (and rationality).338
Wróblewski, himself, does not accept the ideologies of bound decision-making or the idea of free judicial decision-decision-making. Judicial decision-decision-making cannot be reduced to logical and mechanical operation in accordance to the bound decision-making, as there are judicial evaluations which determine judicial choice in many instances. On the other hand, several of the postulates of the ideology of free judicial decision-making can undermine the authority of the law, and there is danger of subjective and arbitrary evaluations which affect the decision-making.339
The ideology of legal and rational judicial decision-making is based on the values oflegality andrationality. Formal legality means that the correctness or approval of a decision is built on it being seen as serving “the maintenance of a legal order as such”: the value of preserving some kind of order in the social relations independent of the internal values of the legal rules. Material legality relates to the consistency of the applied rule with a defined extra-legal axiological system. Rationality is the value which decisions should implement through their proper justification. Internal rationality seeks consistency of decisions and external rationality requires the premises to be adequately connected with the axiology of the law.340
Siltalahas combined the three ideologies of judicial decision-making to the differentframes of legal analysis (many of them depicted above in connection with the issue of ontology of law and justification of judicial application of law) on how to construct and read the law:
Connected to the ideology of bound judicial decision-making are the isomorphic theory of law andlegal formalism.The former seeks to analyse the judge’s legal discretion as the presence or absence of an isomorphic relation between the two states of affairs compared, the one as given in the fact-description of a legal rule and the other as existing in the world. The latter
337 Wróblewski. 1992. 96.
338 Ibid. 253.
339 Ibid. 280, 301.
340 Ibid. 305-311.
puts emphasis on the logico-conceptual and systemic tenets of legal construction and interpretation.341
Connected to the ideology of free judicial decision-making are social consequentialism and natural law philosophy. Social consequentalism emphasizes the economic and other external effects of law in society (in terms of,inter alia, economic efficiency and effected translation costs). Natural law philosophy stresses the inherent relation that the law has to the criteria of religious or communal justice. According toSiltala,the teleological element in social consequentalism and the axiological dimension in natural law philosophy have the effect of cutting legal interpretation off from the institutional premises of law.342
Connected to the ideology oflegal and rational judicial decision-making are the coherence theory of law, new rhetoric theory, legal exegesis, analytical legal realismandlegal conventionalism. The coherence theory of law attaches the criteria of how to construct and read the law to the relations that prevail among the institutional and societal goals of law. The new rhetoric by Chaïm Perelman and its correlative phenomena in legal argumentation take the approval of the methodology and outcome of interpretation in the ideal, universal audience as decisive in legal construction and interpretation (Aarnio and other scholars emphasizing the discursive acceptability of a judicial decision are representatives of this group). Legal exegesis comprises a theory of legal interpretation which seeks to retrace the original intentions of the legislation or a precedent. Analytical legal realism, represented byAlf Ross among others, is connected to the effected law in action of the actual court practice. Legal conventionalism defines the law as commonly accepted or recognized societal practices that might be defined as mutual expectations or cooperative dispositions of the members of a legal community.343
Different ideologies of judicial decision-making tie together the ontology of law and the different frames of legal analysis depicted above. According to Siltala,
“Taken together, the ten frames of legal interpretation present a fairly comprehensive catalogue of the philosophically defensible approaches to legal interpretation. The meta-context of legal argumentation and the related criteria of how to construct and read the law to a great extent vary from one frame of legal analysis to another.”344
But what is the role of the ultimate validity or acceptability of judicial decisions in the needs of this study? First, it provides a critical tool for the assessment of the case law and reasoning by the ECJ.Second,itgrounds this assessment into a particular philosophical approach (and usually a view on the
341 Siltala 2011. 242.
342 Ibid. 243.
343 Ibid. 242.
344 Ibid. 243.
ontology of law) and acts as apassage to the theme.Third,itconnects the key issue of the use of arguments into a larger picture of a theory of legal reasoning. But how does this connection take place?
In talking about the ideologies of judicial decision-making Siltala has pointed to thesequentialist theory of legal reasoning byMacCormick.Siltala argues that inLegal Reasoning and Legal Theory,MacCormic suggests that legal reasoning at a court of justice commonly takes place in the following order: from deductive consistency among the linguistic arguments to the attainment of legalcoherence among the pertinent set of legal principles, if the deductive approach fails to resolve the issue. Finally, if legal coherence fails to solve the matter, legal reasoning moves intoconsequentalistarguments of the external social effects of legal adjudication and the values entailed therein.345 According to Siltala, the three-part approach to legal reasoning by MacCormick can be connected to different theories of law. Linguistic consistency would seem to be close to the isomorphic theory of law. Legal coherence is connected to the coherence theory of law. Finally, the consequentalist arguments would seem to match with theories on social consequentalism.346 In Wróblewski’s terms the connections would emerge between the ideology of bound decision-making and consistency in the linguistic level, between the ideology of legal and rational decision-making and coherence and finally between the ideology of free judicial decision-makingand consequentalism. These connections can also be found inRaitio’s view of the relationship between philosophical approaches to law, the ontology of law, and the different types of legal arguments.347
The ultimate test of validity of a judicial decision is thus constructed of the elements of consistency, coherence and consequentialism (including values).
AsMacCormick has argued:
“The justification of decisions... [in hard cases] must look beyond ‘rules’ as defined by the validity thesis to principles of law.
Principles of law certainly authorize decisions: if there is no relevant principle or analogy to support a decision, that decision lacks legal justification; and if there is a relevant principle or analogy the decision supported thereby is a justifiable decision – but the adduction of the principle or analogy although necessary is not sufficient for a complete justification of the decision. The ruling which directly governs the case must be tested by consequentialist argument as well as by the argument from
‘coherence’ involved in the appeal to principle and analogy. And just as the absence of any supporting principle or analogy renders
345 MacCormick. 1978. 250-251.
346 Siltala. 2011. 250.
347 Raitio. 2003. 369.
a decision impermissible, so the test for consistency must be applied...”348
In the work by MacCormick, arguments of coherence and consequence seem to be linked together as second-order justifications of legal decisions with no respective hierarchical or sequential order. We can see this combination later on in the work of theBielefelder Kreis. It is also quite similar to the theory of the different levels of interpretative criteria by Wróblewski, where the second-level directives of preference hint to aspects of interpretation which override the second-level directives of procedure (sequence).
It is submitted that, in conformity with the sequentialist approach to legal reasoning, justification of a judicial decision requires all of the different elements of the sequences: consistency, coherence and consequentialism.
These elements have to be reflected in the decision in the form of arguments.
Before heading onto the issue of arguments, however, we first need to address the question of is and ought, the normative and the factual, but this time in the context of legal reasoning.