V II. Conclusion
I. Judicial Decision
In consequence of its behaviouristic foundation American realism had to reject the existence of special sources of law and instead consider the ju dicial decision as a stim ulus-response relation. T he m ost extrem e consequence of this is the so- called »digestion-theory«: all elem ents of m otivation, including the ju d g e ’s breakfast and its influence on his m ood, are relevant as »sources of law«, i.e. m o
tives of the ju d icial decision. T hus legal science turns into sociology and psychol
ogy*
Conversely, the Continental legal theory has from different philosophical basic views em phasized the norm ative natu re of law and the judicial decision. T he K an tian distinction between sein and sollen has in all essentials been accepted as the foundation of legal obligation. T he distinction betw een »the realm of necess
ity«, i.e. the physical world presupposing the law of causation, and the »realm of freedom«, i.e. the world of action presupposing responsibility and thus the freedom of will, splits up cognition into theoretical cognition and practical cogni
tion. T heoretical cognition is about the »right« organization of the physical world, practical cognition is about the »right« action.
In this century logical em piricism has revived this distinction and m aintained th at only statem ents have meaning, as the m eaning of a statem ent is identical with its conditions of tru th , i.e. the criteria laid down in advance either in the form of conceptual definitions or a set of m easuring instrum ents. O nly such analytical or synthetical sentences referring either to logico-m athem atical deductive sys
tems or to m easutable sides of reality can have m eaning as they can be either true or false. O n the other hand m etaphysical or evaluating statem ents are w ith
out m eaning as they have no criteria of truth.
T he criticism of positivism has since tried to bridge this fundam ental distinc
tion between theoretical and practical cognition. Indeed it w ould be unsatisfac
tory if there was no difference betw een rational and irrational valuations and ac
tions. O n the one hand it is realized th at no cognition is »objective« as it has to be
described in an ordinary language and th at this language qualification implies an infinite num ber of choices, as real phenom ena have to to be fitted into a m en
tally created conceptual system. O n the other hand valuations are only to a lim ited extent com pletely subjective, as it is possible to come to m ore or less intersubjective agreem ent about an action’s being right or wrong, if its purposes and effects are adequately clarified.
Some people go so far as to assum e th at there is no fundamental difference be
tween cognition and valuation, b u t only a q u antitative difference of the defining of relevant criteria. I am not convinced about the correctness of this argum ent, there m ay, however, be reasonable grounds for building a linguistic bridge be
tween the two categories of statem ent. T hus by the word meaning can be u n der
stood an assumption or a belief that certain m atters of fact are present or th at a certain conduct is the correct one. I f we w ant to be taken seriously as rationally thinking individuals, we m ust, however, be prepared and able to give reasons for this belief.
We m ust not forget that these reasons or motives for our actions are often firmly anchored in attitudes, outlooks, needs and ideas, which are deeply rooted in our nature and culture, and that our description of reality usually m ust be m ade not w ith certainty but w ith different degrees of probability. O bviously these factors based on feelings and uncertainty lim it the certainty of our argum entation. Ideo
logical criticism has w anted to disclose discrepancies betw een the formal grounds for an action and the real motives. Legitimation and justification are the expressions used as extenuative motives; and adducing extenuative motives is claimed to be universal in any case in repressive societies. O n the other hand, m oral philosophy has w arned against throw ing suspicion on hu m an motives as does ideological criticism. Instead K. E. Løgstrup dem ands th at the agent is to be taken at his word when he states his grounds.
T he so-called Scandinavian realism in jurisp ru d en ce has indeed stressed the law as a real phenom enon b ut it does not reject the existence of a legal obligation; on the contrary it has considered positive law to be the only real law in contrast to different forms of n atu ral law. A l f Ross conceives in principle law as an ideology which the judge regards as binding. O n the other hand this ideology is only ex
pressed authoritatively by the judge in his references to the rules of law, which he states in the grounds for his decisions. T hus law is a real phenom enon and is there
fore of im portance only as »existing law«, i.e. the rules of law, w hich are actually applied, as they are stated in the grounds of a judicial decision.
O n the other hand A lf Ross adopts the logico-em piric assum ption th at valu
ations are in principle irrational. T he motives of any decision, including the ju d i
cial decision, avoid rational control, and the grounds for the decision will there
fore be pseudo-grounds. It seems to be difficult to m aintain at a tim e th a t the
prem ises of a ju d gem ent offer the only possible way of obtaining an insight in existing law and th at one cannot be sure w hether these prem ises are true, as the judge m ay in fact be m otivated by other purposes or considerations. However, logically it m ay be possible to assum e th at the ju d g e actually refers to the norm a
tive m aterial, by which he feels bound, and which he thinks th at others will accept too as a sufficient justification of his decision, even if it is not his real motives.
T he crux of the m atter is, however, th at Ross in principle presupposes the existence of a m aterial, by which the judge feels legally bound. T h e difficulties arise especially because he chooses as his starting point the situation of the judge or the adm inistration, which is at best an unnecessary circum locution. As Knud Ilium puts it, the ju d g e ’s possibility of obtaining an insight in the legally binding m aterial is the sam e as th at of other ju rists, for also the judges take their ideology from sources which they consider to be binding. O therw ise the ju d g e would have to make his decisions from his own perception of the obligation and he would not be told where to find inform ation about w hat is binding for him and others.
Sim ilarly Herbert Hart has rejected descriptive definitions of law and considers it im p ortant to distinguish betw een cause and obligation. O n the other hand to him the obligation is nothing but a logical category and not as to Ross a sociological or psychological phenom enon. So while Ross is interested in the re
ality of the law, H a rt as well as Hans Kelsen regard the validity of the law as the cru
cial problem . Like Immanuel K ant, Kelsen looked upon the norm s as im peratives belonging not to the world of reality bu t to the world of freedom, which m eans th at they cannot be justified by referring to physical causes, but only by referring to a higher norm in a system ending with a »basic norm«. H a rt derives law from the rules of recognition which indicate the actual criteria for the valid produc
tion of rules of law of a given society; in prim itive societies it is especially custom , in developed societies especially statutes, regulations and other authoritatively produced w ritten m aterial.
M ost countries (but not G reat B ritain) have a w ritten constitution stating the m ost im p o rtan t criteria for the production of rules of law.
Also other m aterial than statutes, etc., custom and legal usage can be clas
sified as legal m aterial in the sense th at it can form p art of the grounds for a ju d g e m ent. W e see, how references to the motives of laws, their objects and consequences form p a rt of the interpretation o f the law. Also references to the legal doctrine, the dog
m atic legal science, have been used in recent D anish legal practice. However, also certain legal patterns o f argumentation have through the ages been recognized as parts of the legal tradition offering a certain technique am ong other things by filling in a gap in the law in the form of conclusions by analogy or extended interpretation,
or conversely in the form of conclusions by contrast and restricted interpretation. It is an obvious fact th at these figures are used when ad apting the law to changed or un noticed social conditions, however, the decision which figure to choose is governed by pragm atic considerations. T he figures state how far you m ay go as regards legal changes w ithout legislation.
T he D anish constitution lays down a rank-order relation am ong the m ost im po rta n t sources of law: laws, regulations, decrees, etc., but not betw een laws and other sources of law and between one statute and the other. According to our constitution the courts, of course, cannot pass judgem ents in defiance of the law, but the relation between law and custom and betw een the other sources of law and legal argum entation is undeterm ined. However, as regards statutes the ge
neral principle is th at new statutes have priority over older ones and th a t special statutes have priority over general ones. However, it is not a certain rule of prior
ity as it m ay be broken by other considerations, e.g. by inform ation about (probable) errors in the legislative procedure.
However, further argum ents are accepted by the application of law. Refer
ences to justice and equity occur in the legislation, bu t even w ithout authority in statutes such references occur in legal usage. From time im m em orial equality and reciprocity have been crucial reasons ofjustice, while reasons o f equity have been an im p o rtan t m eans for a reasonable application of general rules in concrete cases.
It is no mere coincidence th at Viggo Bentzon has said about »the n atu re of things«, the m ost subsidiary »source of law«, th at it prom pts a decision which combines the regard for settling the case according to a general rule with the consideration for concrete justice. By this we have arrived at the sum of legal ideas and social considerations which have evolved and underlie our E uropean and N or
dic culture. This background of political, religious and cultural values underly
ing our socio-liberal dem ocracies is sometim es - like in the G erm an Federal Re
public and in the U.S.A. - more or less explicitly indicated in the constitutions, but even beside th at it is indispensable th at we in our argum entation of a ju d i
cial decision take as our starting point the general consensus in society.
T here is reason for the belief th at the cases causing special problem s of arg u m entation are the atypical cases (hard cases), w hereas the uncom plicated cases are settled on the basis of consensus about the fundam ental attitu d e in the field in question.
T he basis of argum entation is for instance not the same w ithin criminal law as w ithin private law. W hile conclusions by analogy as a rule are out of the question in the first-m entioned cases, as the crim inal law is presum ed to be exhaustive, conclusions by analogy and extended interpretation and other m ore free p a t
terns of argum entation are w idespread within private law, which only to a limited
extent has been regulated by detailed legislation. If there is a legislation it will often be of a general and a b stract n atu re supplem ented by om nibus clauses (cf. the D anish C ontracts Act § 36), thus leaving the detailed regulation to p ri
vate autonom y.
An exception from this situation - in fact w ith increasing im portance - is the special legislation w ithin private law, which out of politi cal regards is to regulate the rights and obligations of the parties to one another. An exam ple of this is the housing legislation in the widest sense, w hich is also am ply represented in my m aterial. In these fields the frequent legislative initiatives will often result in in
com plete and unco-ordinated regulations, w hich m ay now and then conceal a deliberate confusion in the political process, which refers a political disagree
m ent to be settled by the courts.
Public law will to a higher extent be influenced by political regards on the one hand and by regards for the rule o f law on the other hand. Therefore, in these cases there will often be references to law motives and to equity and justice. The law o f legal procedure is exceptional in so far as the object of the procedure is to secure con
sideration o f justice through the basic principle of civil procedure: audiatur et altera pars, and through the principles of crim inal procedure: the burden o f proof of the
Prosecution and the principle o f public trial.
T hus it is a fact that there is a legal tradition in the widest sense which has arisen w ithin the history of law, legal science and rhetoric along w ith the W estern socio-liberal cultural tradition. A dd to this a special N ordic and D anish politi
cal, cultural and legal tradition, which at any rate during the last 150 years has been characterized by an interplay of theory and practice and an explicit recog
nition of utilitarian and pragmatic argum ents.
However, the argum entation of the courts still show the traces of their prim ary function, which is to adm inister existing law, b ut no doubt the courts still m ake new law and develop existing law by their practice as ab stract rules are con
cretized by their application.
For an existentialist legal theory this view is intensified to its utter conse
quence, as it is m aintained th at law is not established until it is concretized; so far it exists only as a possibility.
Anyhow it is im p o rtan t to em phasize the objective elem ent in the application of the law: it is the law and not the ju d g e which makes the decision. In fact this is the basic principle of the constitutional state. In its w ritten form the decision a p pears as a logical conclusion. O n the other hand it cannot be denied th at the ju d i
cial decision in principle is a decision im plying estim ates in several fields, which can be divided analytically in the following way, although in practice it is an un- divisible or dialectical process of thought.
1. In m ost of the questionable cases it will be possible to apply several differ
ent rules which m ay lead to different results. (Choice o f rules).
2. By the interpretation of the existing rules not only the wording of the w ritten m aterial, i.e. the lexical (linguistic) m eaning, is to be taken into considera
tion, but also the systematic (logical) placing of the rules in the law or the legislation, as well as the motives concerning the objects of the rule (teleolo- gical/historical) and its consequences (pragm atic). T he object of rules of law is actually to influence and control reality. (Choice of legal considerations).
3. Also by the selection of the facts, which are considered to be relevant, is m ade an estim ated valuation which is a consequence of the sam e consider
ations about the objects of the rules and the m eans by w hich to achieve them including their desirable consequences related to legal, m oral and political ideas and principles. (Choice offacts).
Several legal tricks aim , as m entioned, at pushing the estim ative elem ent into the background (conclusions by analogy and by contrast, lex specialis, superior and posterior). It is of value to state such limits to the legal estim ate in the ju d i
cial decision. However, to prom ote clarity and the rule of law it is im p o rtan t to point out the real argum entation in the decision, as it will then be easier to ac
cept the decision, even for the loser, and at any rate it will offer the best founda
tion for criticism of the decision in the form of appeal. In fact the dem and for ju s tification implies the dem and for an open argum entation.
J u s t as I m ust repudiate a m onistic ju risp ru d e n c e 2) and doctrine of rights3), I m ust accept a pluralistic source-of-law-theory. T o legal psychology and legal sociology it is of great im portance to exam ine ju d g es’ and adm in istrato rs’ m oti
vation in the widest sense: their cultural, ideological and political views and their personal and economic-social attitudes to the different types of conflicts and groups of persons. T he justification of a judicial decision is m ost im p o rtan t for legal dogm atics and legal philosophy. A descriptive source-of-law-theory is m ost im p o rtan t for advocates, who have to isolate the argum ents, which are ac
tually stated as the grounds for a judicial decision, in anticipation of producing a convincing m aterial for criticism of a concrete case (appeal) or in support of a sim ilar case. T hus it is the advocates who are m ost interested in reading the ju d g es’ com m ents on their decisions. But also judges, adm inistrators and dog
m atic legal scientists have naturally taken an interest in the grounds for the judgem ents.
However, from a legal philosophical point of view it is indisputable th at a de
scriptive source-of-law-theory does not solve the problem of the source of law.
Anyhow when judges have to arrive at a decision and consequently offer an opin
ion on how a certain case is to be settled it is not sufficient to refer to how they usually justify their judgem ents. Also from a dogm atic scientific point of view it m ust be presupposed th at a certain legal m aterial is prescribing w hen it has been duly established according to a given society’s rules of how to m ake binding rules of law (rules of recognition).
Nevertheless I find th at the analysis of the argum entation and justification of the judicial decision is of the utm ost im portance, as it gives an insight in the types of cases giving rise to difficult legal conflicts at a given tim e as well as the a r
gum ents which the ju d g e and ad m in istrato r consider valid and convincing as grounds to the parties and the surrounding society. It m ust be borne in m ind th at the m achinery of justice only deals with social problem s which have not been assim ilated by society as a whole or by individual groups or persons.
T he m ain object a f legal argum entation is then to a d a p t an atypical conflict m aterial to the generally accepted social consensus. T his consensus as well as the ap p ro p riate argum entation for the adaption of the conflict m aterial to the consensus change and m ust necessarily change along with the developm ent of the conditions of the surrounding society.
New legal argum ents are accepted; now adays there is an open recognition of pragmatic argum entation, and references to legal theory and legal practice a p p ear in the grounds for the ju d g m e n t instead o fjust appearing in the editorial notes. It is interesting th at »the nature o f things«, which refers to the »natural« arrangem ent of the conditions of life, and which through centuries has been used by the source -of-law-theory, in recent legal decisions has been replaced by direct references to legal valuation of these conditions: »reasonable«, »just«, »equitable«, »com mon sense«, etc.
Although there is a tendency to m ake direct references to supplem entary nor
mative material, such as regulations, circulars, guidelines, usage, etc., there is as well an increasing tendency -especially in fields being subject to a violent process of change - to look for the political aims of this (i.e. norm ative m aterial) in the mo
tives of the statutes.
Indeed, it is suggestive th at the large m ajority of judicial decisions, which openly discuss legal argum entation, concerns the understanding and conse
quently the application of the adm inistrative protective legislation of public law and private law.
T hus the source-of-law -doctrine cannot be static, but has dynamically to a d ap t itself to the social and legal tendencies in society. Like Niklas L uhm an you may say th at it reflects the developm ent from the liberal to the welfare state.
T he m aterial, on which my article was based, consisted of legal decisions of