Abstract
According to the semantic notion of logical validity, an argument is valid if the truth of its premises guarantees the truth of its conclusion. In chapter I, I tried to make it plausible that this semantic notion of validity is not very suitable if we are dealing with rules. The elaborate discussion in chapter II of reasons and their relation to principles, goals and rules, should have substantiated this claim.
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References
The example does not aim at full physical correctness.
In Toulmin 1953, pp. 23f. law-like entities like the ones under consideration are called principles. The difference between principles and laws is discussed on the pages 77f. of that work.
In fact, the regulation is still more detailed, but the remainder of these details will be left out of consideration. Cf. the sections 3:86f. of the Dutch Civil Code.
It is, of course, possible to legislate on the subject, and determine by that means which factors count as relevant. The rule that results from such legislation seems to settle the matter definitively, because the legislator has the power to determine, rather than to describe, what is relevant and what not. However, see section 8 on the notion of a replacing reason and its significance for the relation between legal rules on the one hand and legal principles and goals on the other hand.
Another reason why rules are not statements is that rules have a different direction of fit. Cf. section VI.8.
Of course it can have indirect moral significance in case morality attaches moral consequences to what is legally the case.
It seems that in some primitive societies, the moral, the theological, and the legal point of view could not be distinguished. In my view this means that in those societies these were not three different points of view at all.
The gradual nature of some facts is discussed in section VI.5.3.
Whether a valid rule should be applied in a particular case is an altogether different matter, cf. section 9.
Clearly we encounter here the traditional discussion between natural law theorists and legal positivists.
This is the upshot of Dworkin’s argument against the ‘model of rules’. Cf. Dworkin 1978, chapters 2 and 3. The distinction between the institutional part of the law and the social part will more or less coincide with the distinction between written law and unwritten law.
The Dutch Penal Code (article 1, section 1) mentions the principle that nobody can be punished except on the basis of a pre-existing penal rule.
If a rule is not valid, but only ought to be valid, this means that the rule does not exist. A non-existing rule can — for trivial reasons — not be a social rule. Therefore it is strictly not correct to say that a social rule can also generate reasons if it only ought to exist.
A similar theory was proposed by Von Wright, in his Norm and Action, p. 196/7. Von Wright discusses the case where a norm is valid (in a normative sense) relative to another norm on which it is based (a power conferring rule), where that other norm does not need to be valid, but only needs to exist.
Some legal systems allow their Supreme Courts to judge on legal issues only, and not on factual issues. If the distinction between interpretation and classification is (more or less) identified with the distinction between respectively legal and factual issues, it is not immaterial anymore how the borderline between interpretation and classification is drawn. In my opinion, however, the two distinctions should not be identified. Interpretation is always a legal issue, while classification is a legal issue if it is the result of the application of legal rules, goals, or principles, which will be the case as soon as these rules, etc. are contested.
Notice that in this view, rules are not the object, but the result of interpretation.
On statutory interpretation, cf. MacCormick and Summers 1991.
Cf. Peczenik 1989, pp. 375f on reasoning norms.
In this connection Peczenik 1983, p. 1 speaks of ‘deep justification’.
There has even be a jurisprudential school called ‘interest jurisprudence’ (Interessenjurisprudenz). Cf. Larenz 1985, pp. 48f. and Marx 1977.
The phenomenon of deontic collapse makes that goals can indirectly also generate reasons for other things than actions. For the purpose of exposition I will not deal with this phenomenon here; cf. the sections 6.4 and 15.
This example was inspired by the Lebach-case, which is discussed extensively in Alexy 1985.
The notion of an argument is ambiguous. In the present context it is used in the sense of something that is actually adduced in some discussion to convince ones auditory. It is therefore a pragmatic notion. An argument is also a chain of reasoning, which leads from one or more premises to a conclusion. I discuss arguments in this sense in section VI. 19. Sometimes an argument is also considered as the set of premises from which a conclusion is derived. And finally, an argument may be a quarrel.
It may seem that if certain facts are usually sufficient to convince the audience, these facts would be a reason. This appearance is correct, but only where these facts are considered as epistemic reasons. The single fact that you took somebody else’s car away may be a good reason to assume that you are a thief, but it does not make you a thief in the legal sense. It turns out that parasitic rules of inference need not have precisely the same contents as the constitutive rules on which they are based. In particular those elements of a constitutive reason which normally obtain, may be absent from the corresponding epistemic reason.
Cf. the distinction made in Sartor 1991 between principal and secondary facts in legal language, in particular the distinction between facts to prove and facts to which contrary prove must not be given. Cf. also Baker’s views of defeasibility as described in his 1977.
Cf. the possibility to use explicit exception clauses as discussed in Prakken 1993, chapter 5. The difference with the proposal of Alexy is that Prakken embeds the use of exception clauses in a context of nonmonotonic reasoning, while Alexy seems to stick to the traditional view of rule application.
Cf. section 5.8 for the differences between principle- and goal-based reasoning.
This view of analogous rule application is defended in Tammelo and Schreiner 1977, pp. 112f., and Prakken 1993, p. 22. Prakken would say that the analogy is not involved in the application of the rule, but in the suggestion of the rule’s new formulation. In this he follows Soeteman 1989, p. 239. Peczenik 1989, pp. 392f. is not fully clear on its interpretation of statutory analogy. On the one hand Peczenik defines statutory analogy as the case ‘that one applies a statutory rule to a case which, viewed from the ordinary linguistic angle, is included in neither the core nor the periphery of the application area of the statute in question, but resembles the cases covered by this statute in essential respects’. This circumscription seems similar to my view. On the other hand, Peczenik gives an example of a logical reconstruction which modifies the rule conditions to make them suit the new case. This is similar to the approach defended by the authors mentioned above.
In Verheij and Hage 1994 a related way to construct analogous rule application is discussed. Cf. also section V.10. In an actual case, such as the mentioned case of the donation of a rented house, all three constructions may be possible. As was pointed out to me by Prakken, a full argument for the solution of the case would then require both a justification for the analogy however constructed, and a justification of the particular form of analogy which was chosen.
This may even have been intended by the legislator who decided to make the rule inapplicable.
One might argue that application of a statement is the use of this statement in an argument. However, this is only relevant for the <Italic>proof</Italic> of the conclusion, not for the issue whether the conclusion logically <Italic>follows</Italic> from the premises.
Incompatible conclusions will also do the job; contradiction is not necessary. Cf. section 6.3.
Cf. in this connection Raz 1986, pp. 321f. on incommensurability of values and valuables.
This approach to weighing reasons is extensively discussed in section V.9.2. Cf. also section VI.1.
Cf. section 5.3 for an analogous argument against a normative notion of validity.
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Hage, J.C. (1997). Reasoning with Rules. In: Reasoning with Rules. Law and Philosophy Library, vol 27. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8873-7_3
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