RATIONALITY AND DISCOURSE. TOWARDS A NORMATIVE MODEL OF APPLYING LAW

Opis książki

Preface
This book originated as an attempt to relate to each other and reconcile three major subjects of my previous research: the logic of legal discourse, argumentation theories of law and the economic analysis of law.
I had the pleasure and comfort to design the main argument of this study and to work on its first draft during my research stay at the Chair for Constitutional Law and Legal Theory at the University of Kiel in 2005. I am much indebted to my host, Professor Robert Alexy, for the perfect research conditions I found in Kiel and especially for the discussions concerning many important aspects of my analyses. Professor Alexy also read substantial parts of the manuscript and provided me with many important comments.

Back at my home institution, the Chair for Theory and Philosophy of Law at the Jagiellonian University in Kraków, I had the opportunity to reassume my close cooperation with Professor Jerzy Stelmach. I would like to warmly thank him for his irreplaceable help, common research projects, constant advice, stimulating discussions on legal theory and, last but not least, his friendship.
Several people read or discussed with me (parts of) the material and offered important insights and criticism. I am grateful to Professor Tomasz Gizbert- Studnicki for reading the entire manuscript and providing his valuable comments.

I would also like to thank George Pavlakos for persuading me to follow the project and for discussing much of what I wrote. Allan Beever read a large part of the book and served with his expertise of the philosophy of Kant. Ania Brożek offered her important comments on the main arguments of the book. My warm thanks are also due to Wojtek Załuski for the debates concerning discursive and economic rationality and for our close cooperation. I would also like to thank the following people for stimulating discussions concerning the problems I deal with in the book. In alphabetical order they are: Carsten Bäcker, Johannes Badenhop, Stefano Bertea, Martin Borowski, Andrzej Grabowski, Carsten Heidemann, Adam Olszewski, Maria Piesko, Marta Soniewicka, Nils Teifke, Adam Workowski, and Stanisław Wszołek.

I have presented some ideas developed during the preparation of this book to several audiences: at the seminars in Kiel, at the Krakauer-Augsburger Seminar in 2006 in Kraków, at the IVR Executive Committee Meeting in 2006 in Kraków, at the 2006 Meeting of the Polish Departments of Theory and Philosophy of Law in Mędzyzdroje and at the seminars both at the Faculty of Law of the Jagiellonian University and at the Faculty of Philosophy of the Pontifical Academy of Theology in Kraków. I would like to thank the participants of those gatherings for their valuable comments and critique.

A large part of the work on this book was made possible by the research fellowship I received in 2005 from the Alexander von Humboldt Foundation. The preparation of the final manuscript was made much easier thanks to a grant from the Foundation for Polish Science I received in 2006 within their "Homing Program".
Last but most certainly not least, I would like to thank my wife Beata for supporting me throughout the process of writing the book, as well as for her constant love and encouragement and for helping me to realize that we live in the best of possible worlds.

I dedicate this book to my Parents.

Spis treści

Introduction
The Point of Departure 13

Chapter 1

Preliminaries . 19

1. Models of legal reasoning 19
2. Rules and principles theory 21
3. Four important concepts . 24
3.1. Vagueness . 25
3.2. Open-texture . 26
3.3. Defeasibility and revisability from epistemological perspective 28
3.4. Defeasibility and revisability in legal discourse . 33
3.4.1. Structural resemblance 33
3.4.2. Rules and principles theory . 34
3.4.3. Conclusions . 36
4. Robert Alexy's theory of legal reasoning . 36
4.1. Theories of argumentation . 36
4.2. Special Case Thesis 38
4.3. General practical discourse . 41
4.4. Legal discourse 46
4.5. Rules, principles and the Weight Formula 50

Chapter 2
Problems of Legal Argumentation . 53

1. Introductory remarks . 53
2. Failed explanations 54
2.1. Na?ve deductivism and the role of logic in legal reasoning . 54
2.1.1. Legal syllogism . 54
2.1.2. Universalization 59
2.1.3. Discursive character of legal reasoning 63
2.2. Legal hermeneutics 68
2.3. Rhetoric 70
3. The limits of legal discourse . 73
3.1. Practical and theoretical discourse . 73
3.2. Special Case Thesis . 76
3.3. The domains of legal discourse . 80
3.3.1. Legislation . 81
3.3.2. Application of law . 82
4. Desiderata for constructing a normative model of legal reasoning . 90
5. An outline of a solution . 94

Chapter 3
The Logic of Legal Discourse 98

1. Introduction . 98
1.1. Basic problems of legal logic . 98
1.2. An outline of the chapter 103
2. The Weight Formula and legal argumentation . 104
2.1. Some relevant features of Alexy's argumentation theory 104
2.2. The role of the Weight Formula . 107
2.3. Logic 111
2.4. Conclusions 114
2.5. Alexy's objections 115
3. Defeasible logic . 119
4. The logic of rules and principles . 123
4.1. Rules and principles once again: a formal perspective 124
4.2. Classical logic with belief revision 129
4.3. Defeasibility of rules and principles 133
4.4. Comparison of the solutions 138
5. Reasoning by analogy . 140
5.1. Introductory remarks . 140
5.2. Three examples . 141
5.3. General structure of analogy . 142
5.4. Mistaken explanations . 144
5.5. The Partial Reducibility Thesis . 147
5.6. The Irreducibility Thesis . 152
5.7. Coda 154
6. Conclusions 157

Chapter 4
Two Rationalities 158

1. Introduction 158
2. Discursive rationality 160
2.1. Kant's conception of practical reason . 160
2.2. Transcendental argument . 163
2.3. Rationality in law . 167
2.4. Alexy's kantianism . 171
2.5. Undecidability and the discursive justification for the existence of law . 177
2.6. Rules and principles . 182
2.7. Dealing with discursively possible 185
2.8. Summary . 190
3. Rational choice theory 192
3.1. Hobbesian rationality . 192
3.2. Assumptions of the rational choice theory . 193
3.3. Economic justification for the existence of law . 197
3.4. Rational choice theory in legal reasoning 200
3.5. Social choice function 201
3.6. Posnerian Law and Economics . 203
3.7. Moral monstrousness 210
3.8. Summary . 213
4. Towards reconciliation . 214
4.1. On the craziness of a certain idea . 214
4.2. The Hybrid Solution . 215
4.3. A uniform conception . 217
4.4. Meta-choice . 223
4.5. Summary . 225

Chapter 5
An Outline of the Theory of Legal Discourse 226

1. Introduction 226
2. Normative model of legal discourse 228
3. Legal discourse as practical discourse . 230
3.1. The Special Case Thesis Reconsidered 230
3.2. Rules of general practical discourse . 234
4. A note on theoretical discourse . 239
5. Justification for the existence of law 244
6. Rules and principles 248
7. Rules of legal discourse 252
8. Spheres of application . 255
8.1. An outline of the theory of legislation . 255
8.2. An outline of the theory of the application of law . 257
8.3. An outline of the theory of interpretation 261
8.4. Other fields of application . 263
9. Meeting the desiderata 264
10. Comparison with Alexy 267

Chapter 6
Application of Law Sensu StrictSensu Stricto . 268

1. Introduction . 268
2. The Wróblewski's theory 268
2.1. Presentation of the theory 268
2.2. The three examples 273
2.3. Case 1 275
2.4. Case 2 279
2.5. Case 3 281
3. Alexy's theory 284
3.1. Presentation of the theory 284
3.2. Case 1 287
3.3. Case 2 288
3.4. Case 3 290
4. The proposed solution 293
4.1. The general picture 293
4.2. Case 1 reexamined 296
4.3. Case 2 reexamined 297
4.4. Case 3 reexamined 302
5. Conclusions 305

Epilogue
Glimpses Back and Beyond . 307
Bibliography . 311
Index of Names 319