A Theory of Legal Doctrine. Aleksander Peczenik

Ratio Juris. Vol. 14 No.
1 March 2001 (75±105)
A Theory of Legal Doctrine*

ALEKSANDER PECZENIK
Abstract. Legal doctrine in Continental European law (scientia iuris) consists of pro-
fessional legal writings, e.g., handbooks, monographs, etc., whose task is to system-
atize and interpret valid law. By production of general and defeasible theories, legal
doctrine aims to present the law as a coherent net of principles, rules, meta-rules, and
exceptions, at different levels of abstraction, connected by support relations. The
argumentation used to achieve coherence involves not only description and logic but
also evaluative (normative) steps. However, sceptics criticise juristic doctrine for its
normative character, ontological obscurity, vagueness, fragmentation, and locality.
The author answers this criticism pointing out the following. Normative reason is
possible. Liberal ontology, admitting such entities as morally justified law, is possible
as well. The vagueness of legal doctrine can be construed as defeasibility. Defeas-
ibility is inevitable in the law and in human thinking in general. Fragmentation of
legal doctrine is not absolute. Its theories are linked to overarching moral theories.
Finally, locality is not absolute either. Though sometimes restricted to a given state,
theories of legal doctrine display relevant similarities to corresponding theories in
other states.
1. Introduction
This is a paper about legal doctrine, and it is also a paper in legal theory. Its
purpose is twofold: To justify legal doctrine, and thus to show that legal
theory can be useful.
2. Legal Doctrine
Let me start with some facts about legal doctrine. Legal doctrine in
Continental European law (scientia iuris, Rechtswissenschaft, Rechtsdogmatik,
``doctrine of law,'' legal dogmatics) consists of professional legal writings,
e.g., handbooks, monographs, etc., whose task is to systematize and inter-
pret valid law.
* The author is grateful to Svein Eng, Wlodek Rabinowicz, and David Reidhav for valuable
comments.
# Blackwell Publishers Ltd 2001, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
76 Aleksander Peczenik
The work of legal doctrine is almost always value-laden. Legal doctrine is

a good example of a practice of argumentation, pursuing knowledge of the
existing law, yet in many cases leading to a change in the law (Peczenik
1995, 312ff.).1 Enrico Pattaro characterized legal doctrine, as follows:
Law and legal science, only in part divergent, belong to the great realm of ethics,
ethics construed in the broad sense as the whole of all discourses (moral, political,
legal, etc.) whose prescriptions are aimed at practice, that is, behaviour. To attain
their practical ends, law and legal science can make use of logical instruments
without becoming scientific discourses by so doing, but rather making such logical
instruments contribute to the practical preceptive function of law. (Pattaro 1997,
109±10)
Among general theories of legal doctrine, in brief ``juristic doctrines,'' one

may mention, for example, the theories of adequate causation in torts,
theories of negligence, and theories of the sources of the law.
Theories on Adequacy in Torts

For a long time, one has been liable in torts in many legal orders for negli-
gently causing damage. Yet, a German legal scholar J. von Kries invented
about 1880 a theory, according to which one is not liable when causation
was not `àdequate.'' Consider the following example: A negligent coachman
falls asleep. The horse takes the wrong turning. The coach is struck by light-
ning, which kills a passenger. The coachman's negligence is a cause of the
passenger's death, but the cause is not adequate. It would, however, be
adequate in another case, for instance, when the chain of causation from
falling asleep to the passenger's death does not involve lightning but a
driving into the ditch instead. In the latter caseÐbut not in the formerÐvon
Kries points out that we are dealing with a generalizable causation. The
negligence of the coachman was generally apt to bring about such an
accident, and to increase the possibility, or probability of it. Later on,
different theories of `àdequacy'' evolved (Peczenik 1979, 153ff.), inter alia,
the following ones: The causal connection between an action and damage is
adequate if, and only if, any action of this kind is apt to bring about (or
relevantly increases the probability of) damage of this type. The causal
connection between an action and damage is adequate if, and only if, the
action makes damage of this type foreseeable for a very cautious and well-
informed person (a cautious expert, a vir optimus). The causal connection
between an action and damage is adequate if, and only if, the action is a
not too remote cause of the damage. The causal connection between an
action and damage is adequate if, and only if, this action is a substantial
(important) factor in producing the damage.
1
Cf. Savigny 1993, 197: Legal doctrine does not create accomplished rules but a method that
continually changes the rules.
# Blackwells Publishers Ltd 2001.

A Theory of Legal Doctrine 77
Each theory of this kind has been proposed as the general theory of
adequacy, promoting acceptable decision-making. But each one, although
reasonable, is contestable. Moreover, the question how often various
theories imply a different evaluation of adequacy in concrete cases is not
easy to answer. Apparently, we face here a problem: If the theories differ in
their normative consequences, legal doctrine acts as a kind of lawmaker. If
they do not differ, what is their competition good for?
Theories of Negligence
Negligence is an important precondition of liability and responsibility in
vast areas of the law, not the least torts, contracts, and criminal law. Since
time immemorial, the jurists proposed several principles, maxims, and
theories aiming at drawing a demarcation line between what one is, and
what one is not liable for. In part, the demarcation is based on negligence,
though there also exists strict liability without negligence, and negligence
without liability, for example, in the case of non-adequate results of negli-
gent acts, see above. Yet, what is negligence? In its essence, negligence is a
mental attitude for which one is blamed. For example, one knew that one's
action may have brought about the harm but one still did not care, or one
did not know it but should have known. The classical standard has some-
thing to do with normality: One is blamed for carelessness because a normal
person, a bonus pater familias would take more precautions. The estimate of
normality in its turn is either based on frequencyÐwhat most people do in a
certain context is not negligentÐor on a rather complex network of expect-
ations. The latter is difficult to analyse, yet it makes sense to say that one
acted negligently even though many other people in one's position act
similarly. For example, an organizer of fashionable but extremely risky
``canyoning'' tours in the Alps may be found negligent in spite of the fact
that other organizers of such things do more or less the same as he did. The
standard of normality has its tricky history that cannot be discussed here.
An interesting thing is, however, that, in recent times, it has come under
attack from two different sides, namely from Richard Posner's law-and-
economics movement, and from welfare-state politics. Thus, one can be
found liable in torts for negligence in spite of the fact that what one did was
quite normal. According to the economic theory, the defendant's conduct
shall be judged according to whether it promotes economic efficiency
(``Learned Hand's Formula''). According to the social security theory, the
defendant shall be found negligent, if the burden of accidents is thereby
shifted from single individuals and spread over a large population (``the
Deep Pocket Theory''). The new theories are related to the old one in a
very unclear manner. It has been argued that each is proper for a different
kind of case (cf. Dahlman 2000, passim). However, this solution opens the
question whether we still need the umbrella-term, covering all the cases of
# Blackwell Publishers Ltd 2001.
``negligence,'' according to all three kinds. If we need this term, what do we

need it for?
Theories of the Sources of the Law

One can also mention here the Nordic theory of the sources of the law.
Torstein Eckhoff (1993, passim) has elaborated its classical formulation,
according to which there exist a number of ``source factors'' that are
``harmonized'' in legal practice, inter alia, the texts of statutes, travaux
preÂparatoires, the purpose of the statutes, judicial practice, administrative
practice, custom, works in legal doctrine, and so called ``real considera-
tions.'' Eckhoff's work was very influential in Scandinavian legal theory,
and in Norwegian public law, albeit perhaps less influential in Norwegian
private law. The present author has attempted to formulate the underlying
structure of this theory. In his view, the sources of the law are `àuthority
reasons.''2 This excludes Eckhoff's ``real considerations'' from the list of the
sources. Then, the sources of the law are divided into three categories,
namely such that a person who performs legal argumentation must, should,
or may proffer as authority reasons. Thus, in many states in the European
Continent, the following can be said. All courts and authorities must use
applicable statutes. When performing legal reasoning, one should use prece-
dents andÐin some countriesÐlegislative preparatory materials as author-
ity reasons, if any are applicable. When performing legal reasoning, one may
use, inter alia, the writings in legal doctrine and foreign law.
A comparison of this theory with Eckhoff's reveals the following import-
ant difference. Eckhoff's theory is an enumeration of arguments used in
legal reasoning. Programmatically, it is extremely cautious in establishing
any priority order between the sources. The present author's theory, on the
other hand, does establish a defeasible priority order. For example, statutes go
before precedents, yet good reasons exist that can defeat this priority order.3
This leads us back to the main problem. What is the use of defeasible
priority orders? Are they not a mere facËade, concealing the fact that x comes
before yÐunless they are not?
The Point of Legal Doctrine: Coherence

Legal doctrine regards the law as man-made, and historically changing. At
the same time, it arranges the law under general principles. Thus, Savigny,
the grand old man of German legal doctrine, stated that legal doctrine
2
The term has been used by Summers 1978, 707ff. in a somewhat different way.
3
A non-defeasible priority order would distort legal practice. In general, juristic doctrines
about the sources of the law oscillate between efforts to introduce a non-defeasible priority
order, and to deny that any priority order is possible.

is historical and philosophical4; it integrates exegetical and systematic

elements (Savigny 1993, 35). Savigny's key observation was this:
I state that the essence of the systematic method lies in the knowledge and exposition
of the internal connection or affinity linking single legal concepts and legal rules in
one great unit. To start with, these affinities are often concealed and their discovery
subsequently enriches our knowledge. (Savigny 1840, xxxvi)5
By means of the production of general and defeasible theories, legal doctrine

aims at obtaining a coherent picture of the law. It aims at presenting the law
as a network of principles, rules, meta-rules, and exceptions, at different
levels of abstraction, connected by support relations. The argumentation
used in order to achieve coherence involves not only description and logic
but also evaluative (normative) steps.
For example, arguments based on statutory analogy, arguments e contrario,
goal-based reasoning in the law, etc., are certainly not purely descriptive. The
choice of approach in legal doctrine is also based on normative stand-
points, even if the chosen approach itself claims to be ``value-free,'' for
instance, evaluations are necessary to opt for the law-and-economics
approach. The evaluative reasoning steps are justifiable by reasons, ulti-
mately by moral reasons. Thus, the system of law as it is presented in legal
doctrine should not only be internally coherent, but should also be
harmonized with its background in the form of morality, and (political)
philosophy.
To avoid misunderstanding, let me emphasize two things.
First, this description applies only to one kind of research performed at
the law schools. I do not discuss here other kinds. In particular, I do not deal
with research in sociology of law. Neither do I deal with various kinds of
critical research, such as Marxist jurisprudence, critical legal studies,
feminist approaches to the law, and so on. This paper deals only with
descriptive-and-normative legal doctrines that aim at coherence of the law.
Second, jurists make a distinction between a cognitive inquiry into the
law as it is (de lege lata) and justified recommendations for the lawgiver
(de lege ferenda). But as every legal scholar knows, the distinction is difficult
to consistently apply in the practice of legal research. De lege lata and de lege
ferenda are rather ideal types of legal argumentation, not categorically
opposite kinds of such argumentation. One way to define these ideal types
is this. Both research de lege lata and research de lege ferenda aim at producing
coherent theories. In both cases, what is claimed (or made) to be coherent is
4
Historical and philosophical (Savigny 1993, 30), philosophical due to its use of the concept of
system (ibid., 32).
5
`Ìch setze das Wesen der systematischen Methode in die Erkenntnis und Darstellung des
inneren Zusammenhangs oder der Verwandtschaft, wodurch die einzelnen Rechtsbegriffe und
Rechtsregeln zu einer groûen Einheit verbunden werden. Solche Verwandtschaften nun sind
erstlich oft verborgen, und ihre Entdeckung wird dann unsre Einsicht bereichern.''

partly the enacted law, given in statutes and judicial decisions, partly some
``non-written'' evaluations. But the importance and weight of the enacted
law is relatively greater in the research de lege lata than in the research de lege
ferenda.
Svein Eng claims that lawyers' propositions about what is the law,
lawyers' propositions de lege lata, are characterized by the fact that they
almost always are neither purely descriptive nor purely normative; instead
they have a fused descriptive and normative modality (Eng 1998, 310ff.;
2000). I agree fully with Eng's observation. Of course, it does not follow that
each legal doctrine is solely composed of such ``fused'' statements (Eng 1998,
314, 323±5; 2000, 239±40, 248±50). A legal doctrine often contains a lot of
straightforward descriptive statements, for example, about the wording of
a statute, and often also some straightforward normative statements, for
example, recommendations addressed to the courts. But each such doctrine,
qua legal doctrine, i.e., qua a doctrine containing propositions about what
is the law, almost invariably contains fused normative-and-descriptive
statements.
3. Coherence Elsewhere
Legal doctrine gives us a coherent picture of law. Isn't it similar in this
respect to all science? Science is coherent because it describes an orderly
world.
Indeed, the world appears to be in order. Not only do I wake up in the
same bedroom each morning. Not only are there many bow-wow beasts
neatly arranged into a kind called dogs. Whatever happens belongs to a kind
of events. More than that, physicists tell us that there are deeper regularities
underlying what we see and hear. There exist atoms. And it does not end
here. Everything is made up of a limited number of kinds of elementary
particles. Everything follows physical laws. In other words, everything
belongs to a kind, and repeats itself. Unique singularities are at a margin of
our world. Long ago, there was a big bang, but who really understands it?
There are some distortions of the neat picture of the world in quantum
physics, but again, who cares except a few specialists. The all-pervading
order is even more wonderful than that. Physicists tell us such things
because they have mastered the biggest wonder of allÐmathematics. Not
only do there exist particles no one ever can see. There also exist math-
ematical calculi that made it possible to theorize about the particles.
A naõÈve realist can ask the question, where does all this exist? Particles do
exist in space and time, though they tell us that space can be curved, and
time is relative. Mathematical objects exist in a conceptual space only, what-
ever this phrase can mean. A problem? Who cares? Everything is ordered.
At least, our knowledge is ordered. And it tells us what is the case. We
possess a wonderful conceptual scheme capable of showing us a neatly
arranged world. A few philosophers ask whether this conceptually ordered

world corresponds to a reality as it is in itself. But such philosophers are few
indeed, and the question is perhaps meaningless. Whatever we can say
about reality as it is outside of our conceptual scheme, we must say within
the very scheme. We cannot talk without concepts. Or, brutally said, we
cannot talk without talking.
In brief, by using reason, we see the world as orderly. We see it as a
coherent whole. Thus, coherence is a well-known criterion of truth. For
good reasons, one can regard it as the main criterion of truth. To be sure,
foundationalists claim that all knowledge ultimately rests on evident foun-
dations, such as empirical data (cf., e.g., Chisholm 1966, 30ff.). However,
foundationalism has been put in question: The alleged foundations are not
certain. The main competitor of it is coherentism. Roughly speaking, what-
ever is justifiable is justifiable on the basis of the background system of
beliefs and preferences.6
I assume here a coherentist position (cf. Peczenik 1998a; 1998b). I grant
that such a position is not unproblematic. The most profound problem of
coherentist justification is its circularity. If nothing is an unshakable foun-
dation of knowledge, and everything may be doubted, I need reasons for
reasons for reasons _ etc. To avoid an infinite regress, a coherentist must
accept circularity. Indeed, a coherent system of acceptances and prefer-
ences is like a network of argumentative circles, mostly quite big ones.
Metaphorically, a chain of arguments, sooner or later, bites its own tail,
and thus may be represented as a circle. In such a chain, p1 supports p2,
p2 supports p3 etc., _ and pn supports p1. ``Support'' is only explicable as
a reasonable support: p2 follows from p1 together with another premise,
say r1. This premise r1 is reasonable, which implies that it is a member of
another such circle.
Circularity is acceptable because the circles are integrated into networks.
What is important is the complexity of the structure of the network.
Higher complexity of an appropriate kind gives extra safety, makes the circle more
robust, less vulnerable to destruction [_] To put it metaphorically: nets are safer than
chains. (Rabinowicz 1998, 18ff.)
Now, if I want to argue that I am justified in believing or preferring x, I must

appeal to my system of beliefs and preferences at that time. And if a skeptic
wants to convince me that I am wrong, the appeal to my system of beliefs
and preferences at that time is again all he can make (Lehrer 1990, 176ff.).
This idea of coherence leads to epistemic conservatism. Wlodek
Rabinowicz puts it as follows:
Suppose we discover that our system of beliefs is internally incoherent; or suppose
we acquire a new belief that does not cohere with what we have believed before. It is
6
OrÐin Keith Lehrer's terminologyÐof acceptances and preferences (Lehrer 1997, 3).

here that the principle of conservatism comes in: A smaller modification is to be

preferred to a larger one. Thus, conservatism is a principle of minimal change.
(Rabinowicz 1998, 17)
One can wonder why it is so. A simple explanation is that we prefer a

smaller modification of the original beliefs to a larger one simply because
ex ante these are our beliefs; rejecting them would mean rejecting what we
ex ante consider to be true.
This philosophy may appear to be too conservative. However, it is not. It
tells us nothing at all about how big modifications will be necessary to
adjust the belief system to new data. This depends solely on how extensive
the input of new data is. Moreover, the principle of minimal change may be
adjusted so that it will allow us to prefer a bigger modification of the belief
system to a smaller one, if we hope that the thus modified system will
explain more data than we expect to gather in future. In such a case, a bigger
modification of the present belief system is reasonable because it leads to a
smaller modification of the expected future belief system. Scientists often
expect that a more coherent theory will thus explain more future data than a
less coherent theory.7
Finally, the idea of coherence includes the ideal of an all-embracing theory
(Alexy 1998, 42). We must agree with Hegel (1970, 24): ``Das Wahre ist das
Ganze.''
4. Objections to the Coherence of Legal Doctrines

Lawyers, too, try to live in an ordered world. They construct theories of
negligence, adequate causation, and what not. The theories show us order
behind seemingly chaotic legislation, and judicial practice. Dozens of tricky
paragraphs can be summarized as consequences of a few principles that fit
each other in a beautiful intellectual construction.
Are then the theorizing lawyers like physicists? Not entirely. First of all,
their theories have important normative components, despite their frequent
7
This problem is well-known in the philosophy of science, especially in the context of Popper's,
Kuhn's and Lakatos' theories. According to Imre Lakatos, a given research program (a series of
theories) contains a hard core, including some central propositions, e.g., the main points of the
relativity theory in physics. The core is protected by auxiliary hypotheses. One thus ought to
direct counter-examples against the auxiliary hypotheses, never against the hard core. The
research program is fruitful (``progressive''), if it continually produces theories with greater
and greater empirical content, explaining more and more observations. A degenerative research
program is no longer able to do it. In such a case, the program often gives way to another one,
with another hard core. For example, classical physics stagnated at the end of 19th century
(cf. Lakatos 1970, 132ff.). Similarly enough, a research program of juristic doctrine is fruitful
(``progressive''), if it continually produces coherent theories covering more and more estab-
lished legal norms, data of social morality, and data of personal morality (cf. Peczenik 1989,
143ff.; 1983, 126ff.). Notice, finally, that this view of legal doctrine can be made more
``positivistic,'' if one leaves aside the question whether moral norms and value statements,
endorsed by the person performing the concrete act of legal reasoning, have a data status for
a jurist.

claims to deal with the given law (lex lata). Further, the neat picture of the
legal world suffers from four deficiencies: ontological obscurity, vagueness,
fragmentation, and locality. No wonder legal sceptics treat theories of
juristic doctrine as rhetorical devices, at best making people happy, and at
worst deceiving them.
The Alleged Irrationality of Normative Theories

The normative content of juristic doctrines is sufficient for various value
sceptics and rule sceptics to declare such theories as par excellence non-
rational. In other words, such sceptics simply assume that there is no such
thing as a normative reason. In this context, let me note that, if the sceptics
were right about the non-existence of normative reason, their criticism
would hit all normative disciplines, not only legal doctrine. For example,
there would be no rational normative moral theory. This consequence was
derived by, among others, David Hume.8
Hume's position resulted from his empiricism. Let me just quote the
famous fragment:
Take any action allow'd to be vicious: Wilful murder, for instance. Examine it in all
lights, and see if you can find that matter of fact, or real existence, which you call vice.
[_] The vice entirely escapes you, as long as you consider the object. You never can
find it, till you turn your reflection into your own breast, and find a sentiment of
disapprobation, which arises in you, towards this action. Here is a matter of fact; but
`tis the object of feeling, not of reason. It lies in yourself, not in the object. (Hume
1985, 520)
HaÈgerstroÈm's philosophy was more complex, but he, too, vehemently

denied the possibility of rational theorizing in morality, as opposed to
theorizing about morality.9
8
More precisely: Hume did not rule out the rational choice of means, given a goal. But he did
not believe in a rational choice of goals.
9
HaÈgerstroÈm built up his theory around the following theses concerning reality. All knowledge
concerns something real. Only one reality exists and it includes objects located in time and
space. A human being is thus real, since she exists during a certain time, and always occupies
some position in space. Mental processes exist because they are indirectly related to time and
space: People experience them as existing in time and space. Time and space are objective. What
cannot be placed in time and space does not exist. The reason why some concepts cannot be
thus placed is their self-contradictory character. According to HaÈgerstroÈm, value concepts like
``good'', ``beautiful,'' etc., are self-contradictory, if interpreted in an objectivist manner. They
apparently say something about the objects (e.g., ``this picture is beautiful'') but in fact they do
not do so at all, and merely express feelings (such as, `òne's admiration of the picture'').
Moreover, value statements lack truth-values, since they ``describe'' something outside of time
and space. The value `èxisting'' in an object, e.g., goodness `èxisting'' in it, does not exist in any
definite sense at all. For references, see Peczenik 1989, 258ff.

Ontological Obscurity
Another big objection to legal doctrines is that it is often unclear as to
precisely what it is dealing with. Surely, an author of a sophisticated and
coherent study about negligence or adequate causation in the law aims at
something more than a simple description of such facts as the plain meaning
of the statutes or judicial decisions. Since the details of the legislation of the
legal system in question can be a product of a political compromise, and at
worst of sheer corruption, since these details are nevertheless binding and
thus affecting the basis of such doctrines, the doctrines are open to the
following objection. How can jurists give us a neatly ordered and coherent
picture of the law thatÐin factÐcan be chaotic and incoherent? A jurist who
develops a coherent doctrine must answer that he does not simply describe
either the statutes, or the decisions. Rather, he wants to reveal something
more profound, underlying the statutes and decisions. But what? Not the
actual opinions of politicians, judges, or the public, since these are obviously
neither sophisticated nor coherent. Opinions are fluid and pluralist, legal
doctrine is coherent and stable. It cannot be about opinions. It is, then, about
what? In other words, whereas neat calculi in natural science apparently
reveal the order in the world itself, neat juristic doctrines cannot reveal such
an order, since there is none.
Vagueness
Another problem for juristic doctrine is that it is excessively vague, so vague
that precise normative consequences do not follow from it. For example, the
theory of legal sources cannot tell us precisely when established judicial
practice takes priority over the wording of the statute. Neither can the
normality theory about negligence tell us anything precise about what
counts as normal. Nor can the foreseeability theory about adequate
causation tell us what an expert would foresee as a too tricky accident.10
Fragmentation
In a neat world, juristic doctrines would be coherent with a single super-
theory. In a similar way, branches of natural science are coherent with basic
physics. But in fact, juristic doctrines show a kind of neutrality vis-aÁ-vis
basic theories of practical reason and morality. Disputes between
10
A couple of other examples: The so-called loyalty principle in Swedish contract law,
increasingly popular in recent years, does not imply particular solutions to hard cases, and is
merely regarded as an auxiliary tool for the interpretation of statutes and contracts (cf. Nicander
1995/96, 49). It is not easy to see what job this tool helps to perform. The same has been said
about the theory rebus sic stantibus. Its teleological version has some sort of success in Sweden,
yet its author characterized it as `à conglomerate of different principles with different levels of
preciseness and an unclear relation to each other'' (cf. Lehrberg 1989, 277).

utilitarians, rights theorists, particularists, and other moral philosophers

affect them little, if at all. This fact creates a problem as to the profound
foundation of the normative force of juristic doctrines.11
Locality
Moreover, juristic doctrines are made in respective national legal systems.
For example, the German theory of adequate causation in torts is not at all
similar to the Anglo-American theory of proximate cause. Neither is it
similar to the French theory of cause eÂtrangeÁre, though all three theories
perform a similar function in the respective legal systems. In this sense,
juristic doctrines are essentially positivistic. Their content is affected not
only by principles with a claim to universal validity but also by the con-
tingent content of a particular legal system. How can this content be
normatively binding? And in what sense of ``normativity''? Is there any
normativity that is peculiarly legal, not moral? In what sense, then?
Such questions inspire a plethora of legal positivist theories. Regardless
of the current fashion in legal theory, let me express here a deep mistrust
of such theories. They are on a mission impossible. A legal theorist, often
a political liberal, wants to restrict normativity to universal principles no
reasonable person would reject. At the same time, he must admit that the
law is not universal. He would love to conclude that the law is not norma-
tive, but he cannot do this, and preserve his credibility for lawyers. He
wants to eat the cake, and yet to have it intact. No wonder he prefers Legal
Positivism. And no wonder his positivist theories inevitably evolve towards
increased sophistication, and decreased informational content.12
The Challenge
This situation is a challenge. To understand juristic doctrines, a theorist
must argue that they are justifiable despite their normativity, ontological
obscurity, vagueness, fragmentation, and locality.
5. The Normativity of Juristic Doctrines

For many lawyers, value- and even norm-scepticism sounds quite con-
vincing. However, the sceptics face some unsolved problems. Firstly, the
philosophical foundations of such scepticism are controversial. Value- and
11
Thus, a jurist may even propose that the best juristic theory is what is legitimate, in the sense
that some (not necessarily all) people accept it in our pluralist society. Since different people
accept different things, such a theory may be incoherent (cf. Dahlman 2000, 159ff.). In this
context, let me emphasize that ``legitimacy'' is an extremely complex phenomenon (cf., e.g.,
Berger and Luckmann 1971, 110ff.), as such not particularly useful as the last step of a complex
analysis of legal normativity.
12
Cf. the already classic collection of essays, George 1996.

norm-sceptics doubt, refute, or at least radically revise many concepts used

in everyday life, such as ``good,'' ``just,'' ``valid law,'' ``rights,'' and ``values.''
But the ultimate basis of this form of scepticism is open to criticism.
For Hume, the basis is psychology. There are two main kinds of
psychological state. On the one hand there are beliefs, states that purport
to represent the way the world is. And on the other hand there are desires,
states that represent how the world should be. Desires are unlike beliefs
in that they do not even purport to represent the way the world is (Smith
1994, 7). This Humean psychology is the psychological equivalent of the
logical gap between Is and Ought. Just as the Is and the Ought are assumed
to be (onto)logically independent, belief and motivation are assumed to be
logically independent. However, this belief-desire psychology is highly
controversial in moral theory (McNaughton 1988, 20±3, 47±50, 108±13;
Hage and Peczenik 2000b). Moreover, the Humean criticism is general, not
restricted to the law. Whoever employs Hume to criticise the juristic doc-
trines, is committed to being equally critical to all normative moral theory.
For HaÈgerstroÈm, the basis of the criticism of moral and legal concepts is
another concept, the concept of reality, as solely composed of facts extant in
time and space. From the analysis of this concept, the so-called Scandinavian
Legal Realists derive their criticism of fundamental concepts of morality and
law. But what are the grounds for accepting this restricted concept of reality,
and consequently, for using it to censor moral or legal concepts?
Second, the consequences of such scepticism are fatal. Any theory that
regards valid law as a product of fantasy creates an unbridgeable gap
between ordinary beliefs of the lawyers, and legal philosophy. A lawyer has
to use such concepts as ``valid law'' and ``rights'' with a normative com-
ponent. A legal philosopher, meanwhile, tells him that this use is objection-
able. This gap may easily cause professional frustration, leading to a
retardation of legal doctrine. A great American Legal Realist thus concluded
with resignation: `À right man cannot be a man and feel himself a trickster
or a charlatan'' (Llewellyn 1960, 4).13
The conclusion must be that the existence of normative components of
juristic doctrines is no compelling objection to such doctrines. Surely, the
doctrines are open to philosophical criticism. But the very same criticism is
also open to philosophical criticism. A jurist is well advised to take such
criticism with equanimity, and to get on with producing his doctrines until
someone really proves them wrong.
6. Vagueness and Defeasibility in Legal Doctrine

Let me now deal with the vagueness of legal doctrine. I will argue that
vague formulations often signal that the juristic doctrine in question is
13
It should probably be `à man cannot be a right man'' but the observation is patently true.

defeasible. Vagueness is a matter of language, defeasibility in the law is

often a matter of morality.14 Moreover, defeasibility makes legal systems
morally acceptable. Whoever eliminates defeasibility from the law, must
end up with a law open to moral criticism. No wonder, legal doctrines are
defeasible.
The key analytical invention, making it possible to reconcile the justifi-
cation of legal rules with the demand of moral acceptability, is what follows.
To be sure, legal rules generate decisive reasons for legal conclusions.15
Decisive reasons determine their conclusions. If a decisive reason for a
conclusion obtains, the conclusion must also obtain. But only some, not all
decisive reasons determine their conclusion without any possibility of an
exception. Other decisive reasons are, however, defeasible. In other words,
the possibility that such a reason is defeated cannot be excluded in advance.
Decisive-and-defeasible reasons determine their consequences in normal
circumstances, but do not determine their consequences if the circumstances
are not normal. Thus, legal rules are decisive reasons, but they admit of
exceptions. Exceptions to the rule exclude its application. In other words,
legal rules are defeasible reasons for legal conclusions.
There are at least three kinds of exceptions. Some exceptions are explicitly
formulated in the written law. Others are implied by logical contradictions
in the law. If two rules with logically incompatible conclusions are applic-
able in the sense that their conditions are satisfied, there must be an
exception to at least one of them. Still other exceptions appear when there
are reasons not to apply the rule, which outweigh the applicability of the
rule as a reason for application.
The last mentioned situation deserves some comment (cf. Hage and
Peczenik 2000a; Peczenik and Hage 2000). In most cases, legal provisions are
applied if their conditions are satisfied. With hindsight, such cases may be
called routine ones (`èasy'' ones). A decision in such a case follows from an
established legal rule together with the description of the case. Sometimes,
however, there are major objections to applying legal provisions. Then one
is prepared to make an exception. Such cases are with hindsight called
14
A linguistically clear rule can also be defeasible, if counterveiling weightier reasons tell
against its application.
15
In contrast, legal principles are contributing reasons. Contributing reasons do not ever deter-
mine their consequences by themselves. There can be contributing reasons that plead for and
against a particular conclusion. It is the set of all contributing reasons concerning a particular
conclusion, both the reasons pro and con, that determines whether the conclusion holds. Once
we know that a certain provision is a principle, or that a certain practice or deliberation
expresses principle, we know that it is a contributing reason, not a decisive reason. Principles
have a dimension of weight, and reasons based on principles need to be weighed against
reasons based on colliding principles, if there are any. All use of principles in legal reasoning is
for weighing. A lawyer is not supposed to just follow a principle. He is supposed to engage with
it, and to weigh it against other principles relevant for the case. See Hage and Peczenik 2000a.
One can also say that contributive reasons are pro tanto (Rabinowicz 1998, 21. Cf. Kagan 1989, 17;
and Peczenik 1998b, 57). As to the discussion about legal principles, cf., e.g., Dworkin 1977; and
Alexy 1985; 2000.

``hard'' ones. In hard cases, almost all legal provisions can be defeated on the
basis of weighing contributive reasons for and against their application. To
be sure, routine cases, too, involve values and choices, but these are
commonly shared and uncontroversial. Thus, the everyday use of rules is
not to weigh them. Weighing rules is not an everyday defeasibility, but
hard-case defeasibility. For a lawyer has a good reason to ask questions
about the weight of rules first when these are very objectionable.
Once we understand that legal rules, though decisive reasons, are defeas-
ible, we understand the point of theories in legal doctrine. The theories
produce principles and they also produce defeasible rules. In other words,
legal doctrine may produce ``subsidiary'' general rules, from which the
statutory rules are exceptions. In classical Continental systems, such general
rules are often produced by general theories, such as those discussed
above.16
A sceptic can now object in the familiar manner. Would it not be better to
have a system of non-defeasible rules? Would it not be better if all the law
were clear? Perhaps. However, no legal system ever has been totally clear.
Despite all the efforts to design complete and clear codes, to prohibit inter-
pretation, etc., life has repeatedly produced hard cases, where an exception
from the wording of the law appeared to be reasonable. Some philosophers
of law tend to explain this fact by invoking the vagueness of ordinary
language. But the main source of counter-examples to all rules is not lin-
guistic. If it were linguistic, the problem could be solvable by programming
all law into a computer-language. But it is precisely the computer experts
who are now making big efforts to build defeasibility into their models of
law (Hage and Peczenik 2000a; Peczenik and Hage 2000).
The main source of the defeasibility of legal rules is that our moral
reasonÐwhich is behind all lawÐhas a spontaneous capacity to find
exceptions from old rules, once life confronts us with new situations. This
spontaneity can be simulated in a computer by introducing a random
operator. Do we people have a random operator in our heads? Or do we
have a faculty of judgment?17
In the latter case, defeasibility cannot be eliminated from the law except at
the expense of injustice. Hence, we ought to have some defeasibility in the
legal system. In the light of it, it is plausible that juristic doctrines, too, are
defeasible.
The problem then becomes a far less radical one: Do juristic doctrines not
introduce too much defeasibility? Granted that we need general normative
theories with a space for exceptions, should such theories not be less vague
than juristic doctrines usually are? Such a demand of relative (not absolute)
16
Legal doctrine may also produce exceptions to statutory rules but this is less interesting in the
present context.
17
Curiously enough, this question occurred in a conversation between Robert Alexy and myself
about 1980, and again after 20 years. Some questions are inescapable.

clarity is certainly reasonable. Yet, the jurists obviously try to speak clearly,
and still cannot do better than produce vague umbrella-theories. Why?
It seems that vague juristic doctrines create coherence in the law despite
the fact that they do not create clear rules. They create flexible ``boxes'' into
which rules can be put, and they trigger doubt as to some rules. All this is
not precise at all, yet it appears to make sense of the law. In other words, it
helps us to see the lawÐand thus societyÐas something meaningful.
We have no analytical tools to show why it is so. Perhaps the human need
of coherence is greater than the need of clarity, at least in some circum-
stances. Vague juristic doctrines were acceptable to the great lawyers of the
German 19th century because coherence was perceived as more important
than clarity. Many of my Swedish colleagues prefer clarity to coherence. But
then, they have problems with hard cases.
7. About Ontological Obscurity

The problem of ontological obscurity is even trickier. It is tempting to think
that there is an underlying order behind the juristic doctrines. In natural
science, one can talk about a neat world of neutrinos and prime numbers
because there are regularities in the underlying reality. To an alien, this
underlying reality mayÐjust mayÐappear differently than to us. We simply
cannot know. What we know is about neutrinos, etc., not about the meta-
physical reality behind them. Still it is plausible to assume that the world in
itself exhibits such regularities. Perhaps analogously, what we know in the
law is about adequate causation, etc., and not about underlying ``deeper''
reality. But there may be something in reality itself making such theories
possible, precisely as there is something in reality itself, making physics
possible. This ``something'' is difficult to grasp because of the normative
component of juristic doctrines. Adequate causation is causation that ought
to lead to liability. The real existence of this ought-component must have
something to do with the human mind. Perhaps it must have something to
do with regularities as to the moral sensitivity and reason of all people.18
If we assume that the law exists, and that it ``behaves'' in a way fitting legal
doctrine, we can theorize law, as follows. The law exists because people
believe in the law, but the law is not identical with the beliefs. Law super-
venes on human beliefs, preferences, actions, dispositions, and artefacts.
One way to theorize these observations is to begin with Eerik Lagerspetz's
theory of conventional facts and rules. Thus:
It is mutually believed in a population S that p if
(1) everyone in S believes that p;
(2) everyone in S believes that everyone in S believes that p;
and so on ad infinitum. (Lagerspetz 1999, 201)
18
I cannot develop this idea here. Cf. Peczenik and Hage 2000.

Then,
R is a regulative rule in S if
(1) the members of S generally comply with R;
(2) there is a mutual belief in S that R is a regulative rule in S, and is at least partly a
reason for (1). (Lagerspetz 1999, 211)19
But law is not a mere convention. It is a product of convention and morality.

If we accept that the point of legal doctrine is to present the law as coherent
and morally binding (see Section 2 supra), we get two competing theories of
legal doctrine. The first is that legal doctrine gives us knowledge of the
coherent and morally binding law that already existed before the construc-
tion of the theories, even if the legislation-cum-judicial practice was neither
coherent nor moral. The second is that the doctrine changes the law into a
more moral and more coherent one.
I prefer to take the knowledge claim of legal doctrine seriously. Hence,
I must admit that the law in a profound sense already was coherent and
moral, before legal doctrine told us so. In other words, a legal scholar can
discover a pre-existing law by means of giving a convincing argument for it.
To elucidate this difficult idea, let me quote from another paper:
Consider, for instance, a legal scholar, Dr. Hercules, who reads the law and derives,
at the time t1, the conclusion, that one legally is not liable in torts for some causal
results of one's negligence. Assume that Dr. Hercules works perfectly and that his
reasoning involves his personal morality. What is the character of the conclusion?
We consider two alternatives:
Alternative 1: The derived legal statement is true with respect to the law, as it existed
already before t1 [_]
Alternative 2: What is derived is a new valid legal norm. The norm has come into
existence at t1 through derivation, not through legislation. LD changed (developed,
the German word is Weiterentwicklung) the law [_]
Alternative 1 [_] seems to be the closest approximation of the self-understanding of
the classical LD (legal doctrine) of the 19th century. If the derived norm was already
valid law at t1, Hercules was right from the beginning. His argument, we assume that
it was perfect, leads to the most coherent theory of the law. Presumably, this theory
includes the belief that most conventional rules and institutional rules are valid legal
rules, and the belief that most of the rules that are valid are conventional or
institutional rules. But some of the conventional and institutional rules may have
dropped out in order to maximise coherence. Moreover, some rules may have been
added to enhance coherence, for instance rules that point out exceptions to other
included rules that conflict in some cases [_]
19
One can wonder whether Lagerspetz' proposal is not viciously circular: The definiendum
appears in the definiens. Lagerspetz' answer (1999, 199) is: ``There are things which exist and
facts which hold only if the relevant individuals believe that they exist or hold and act according
to these beliefs. What we call institutions and institutional facts fall under this description.
Descriptions of these things and facts are implicitly circular, or self-referential, but the circle in
question is not a vicious one. In the descriptions, institutional terms reappear only in the scopes
of propositional operators describing the attitudes of relevant individuals. Moreover, the
existence of the related beliefs is only a necessary condition for the things being there.''

To state that the norm discovered by Hercules' reasoning already existed, means that
this norm is a part of the legal system described by (part of) the most coherent theory
of everything. Hercules' reasoning constructed this theory and the law is by defin-
ition that which corresponds to the legal part of this theory. (Peczenik and Hage
2000, 341±2)
Thus, the morally binding law depends on two things together: on the
individual's knowledge of legal institutions, and on moral deliberation. The
first supervenes in its turn on mutual beliefs; the second depends on motiva-
tions and dispositions of the individual who performs the interpretation. It
approximates the morally binding law, provided that this individual is
morally sensitive and rational.20
In sum: Personal interpretation of law turns into morally binding law if
this interpretation achieves
. optimal coherence of the law itself,
. coherently linked to
. optimally coherent moral theory.
Of course, this is an unreachable ideal. But this is the ideal legal doctrine
must try to approximate in order to live up to the ideal of descriptive-and-
normative Rechtswissenschaft.
All this is highly metaphysical. But the point is that such metaphysics
makes sense of descriptive-and-normative legal doctrine. And legal doctrine
is (or at least was) a fact. Personally, I would prefer a simpler metaphysics
doing the same service. A challenge for philosophers?
Notice that such ontological intricacies are easy to avoid, if one is pre-
pared to pay a sufficiently high price. For example, one can say something
like this:
While we believe that the physical world must be coherent, there is no similar
expectation with respect to law, which is a man-made construct. We still expect legal
doctrine, like all science, to give us a coherent picture of law, but that coherent picture
may well portray law as internally incoherent. That law is coherent may be a
working presumption for a legal theorist, but it is a defeasible presumption.21
This is a very tempting way to see the situation. But from this point of view,
legal doctrine is no longer genuinely normative. In other words, it is a
doctrine about the law, not the doctrine in the law. Thus, it is another kind of
legal doctrine than the one discussed in this paper.
I have no idea how many academic jurists of the 21st century work in the
law, and how many rather prefer to write about the law. In my own country,
20
Cf. Peczenik and Hage 2000, where a stronger conclusion is derived, namely that the binding
law supervenes on two things jointly, namely on institutions and moral sensitivity. To make this
stronger theory more convincing, we need an advanced theory of supervenience. However,
such a theory is not necessary for the argument developed in the present paper.
21
A comment from Wlodek Rabinowicz.

the second kind seems to be fashionable. But the point of this paper is
merely to argue that the approach of the first kind is justifiable, not to
demand that everybody works like that.
Last but not least: In some parts of the law, like classical civil law, the
normative-and-descriptive research in the law, assuming that the binding
law must be coherent, is easier to perform than in other parts, closer linked
to everyday politics. Internal incoherence of legislation-and-practice in the
latter ones, such as, for example, social security law, can be too great for
a jurist to eliminate. Intellectual tools of the doctrine, its skill of interpret-
ation and systematization, are futile when applied to such parts of the law.
In such a situation, a jurist may attempt to work in the law, in the hope of
discovering the hidden coherence, and then give up and switch to a theory
about the law, describing, explaining, and perhaps criticising the
incoherence.
8. As to Legal Motivation
As to the relation between the law and human motivations, the following
must be added (Hage and Peczenik 2000b).
The law exists, it is a fact. Yet, if the law is genuinely prescriptive, it
cannot be purely a matter of motivationally inert facts. The law seems to be
on the borderline of Is and Ought, which is hard to fit into the view of the
world as motivationally inert.
Thus, in order to make sense of the knowledge claim of juristic doctrines,
one must leave Humean philosophy, and consider the possibility that there
are facts whose existence inherently depends on the motivation, or at least
on the reasonable motivation, of the knowing subject. The law is such a fact.
In view of this conception, it is easily understandable why so many lawyers
(at least pre-modern and post-Nazi lawyers) reasoned like this: This ``law''
cannot reasonably motivate me, hence it is no law. OrÐmore specifically:
This ``law'' is extremely unjust, hence it is no law.22
A consequence of this position is that it must be accepted that the world is
not completely independent of the persons for which this world exists.
Rather, both motivationally inert facts, and motivating-cum-normative
reasons are intended to be objective, that is, to be a part of our common
world, andÐat the same timeÐthey all may turn out to be merely a part of a
personal world of an individual, because this individual uses a (slightly)
different conceptual scheme from others. In the latter case, it still makes
sense to speak about a world, though a personal one (cf. Hage and Peczenik
2000b).
22
This is the point of the famous Radbruch formula (Radbruch 1973, 354; cf. Alexy 1992, 53ff.;
Hage and Peczenik 2000b).

By the way, the view that Humean psychology is insufficient to grasp

motivation displays an interesting similarity to Leon PetrazÇycki's views.
PetrazÇycki wrote what follows:
The elements of psychic life known to contemporary psychology are divided (by it)
into three categories: (1) cognition (sensations and ideas); (2) feelings (pleasures and
sufferings); and (3) will (aspirations, active experiences).
This classification cannot be deemed satisfactory [_] Proper self-observation can
reveal the existence of experiences in our psychic life not fitting within any one of the
three categories, but possessing a bilateral, passive-active nature [_] such as
experiences of hunger (appetite), thirst and sex excitation [_] We unite into a special
class all the phenomena of the human and animal mind which possess this bilateral passive-
active nature and term them impulsions. (PetrazÇycki 1955, 22±3)
PetrazÇycki refused to simply analyse, for example, hunger as a combination

of a feeling and a desire.
The passive side of hunger-appetite is not to be confused with the feeling of suffering
[_] Normal, moderate, and healthy hunger is more frequently accompanied by
feelings of satisfaction than by those of suffering. The traditional theoryÐwhich
regards hunger as a negative feelingÐat once ignores the active side of the phenom-
enon and confuses the passive experience which is experienced in hunger appetite
[_] with the phenomena which may accompany hunger but are not essential thereto.
(PetrazÇycki 1955, 23)
According to PetrazÇycki, there exist, inter alia, ethical impulsions (or

`èmotions,'' the Russian word is `èmotsya''), divided into moral and legal
ones. They are characterized as follows:
Specifically, psychological analysis demonstrates that there are certain categories of
ideas which are component parts of the structure of moral and legal experiences
alike. (1) Action ideas: [_] actions or objects of [_] obligations; (2) subject ideas: ideas
of subjects of moral obligations and subjects of legal obligation; and (3) ideas of
relevant facts: of conditions (in hypothetical moral and legal experiences) [_] Finally,
there are (4) ideas of normative facts: moral experiences comprising ideas of norma-
tive factsÐwe should forgive insult because this is the teaching of Christ [_] we shall
call positive moral experiences or positive morality, and the others (which include
no references to external authorities) we shall call intuitive moral experiences or
intuitive morality. Legal experiences comprising ideas of normative facts we shall
call positive legal experiences or positive law; those legal experiences which contain
no references to outside authorities and are independent thereof we shall call intui-
tive legal experiences or intuitive law. (PetrazÇycki 1955, 56±7)
All this was written by a scholar who considered law and morality as
``phantasmata which do not exist.'' According to him,
the only real existence is that of the peculiar impulsions in the mind of the person
attributing the obligations in connection with certain intellectual processes.
(PetrazÇycki 1955, 43)
However, though undoubtedly a genius, PetrazÇycki was no philosopher. If

we take his insights in psychology and sociology of law seriously, and his
ontology cum grano salis, we can use his description of impulsions (emotions)
as the starting point for a theory of motivating facts. To achieve such a theory,
one must add to PetrazÇycki's characteristic of moral and legal impulsions
(emotions) three observations, namely
. that such emotions have cognitive character, namely that they tell us
something about the underlying reality;
. that this underlying reality in some cases consists of binding morality
and binding law; and
. that this is the case if the content of the ideas (namely action ideas,
subject ideas, and ideas of relevant facts), thought by the persons in
question in many different and varying contexts, displays a sufficient
degree of coherence.
In sum: Juristic doctrines make the law more coherent than mere legislation-
cum-judicial practice is. If one equates ``the law'' with legislation-cum-
judicial practice, the conclusion must be that legal doctrine changes the
law. However, if one conceives the law as inherentlyÐand rationallyÐ
motivating, then the incoherent legislation, and incoherent judicial practice
cannot motivate rationally. Of course, they can motivate, but the incoherent
motivation would be by definition non-rational. More precisely, it would
be rational in one sense only, namely as a rational fear of punishment. It
would not be rational in the sense of rational conviction that the law has
such content that it ought to be obeyed. This leads to the following insight.
When legal doctrine makes the enacted law more coherent than it was,
it gives us knowledge of the deeper law, namely the law as a rationally
motivating fact.
Moreover, this deeper law is more coherent than the legislation-cum-
judicial practice, because ``coherence and goodness have more affinity than
coherence and evil'' (Fuller 1986, 91). In other words: One can always proffer
reasons for the view that an action is good. Those reasons are good if they
build networks in which one can find reasons for reasons for reasons etc. An
evil action cannot be supported by as complex a network of reasons as a
good action. An action is evil because one acts contrary to countervailing
reason. Surely, goodness can be spontaneous, but it also must be justifiable
on reflection, and this reflection is worthless if it is not coherent.
9. As to Cognitivism
This theory assumes moral cognitivism. I must confess that it took me (too)
many years to understand that this is the case. The main question in this
context is, in what sense, if any, can (moral and legal) evaluations (inter alia,
the evaluations inherent in legal doctrine) give us knowledge? To say that
a descriptive proposition gives us knowledge may be thought to be about
the same as to say that it is true. Can a legal interpretative statementÐ
supported by the weighing of moral argumentsÐbe true, even if it is

justifiable only by a set of premises containing evaluations?
One way of answering this question involves a theory, which is cogni-
tivist as regards prima facie norm- and value-statements, and, at the same
time, non-cognitivist as regards all-things-considered norm- and value-
statements. The former are true if they correspond to the cultural heritage
of the society. The latter may be more or less reasonable in the light of
the acceptance- and preference-system of an individual, but they are not
true in the ontological sense. In view of such a theory, knowledge of prima
facie values is possible, whereas a well-argued belief concerning an all-
things-considered value merely expresses something essentially similar to
knowledge, not knowledge in the literal sense (Peczenik 1998a, 13).
This theory is open to criticism because it is a hybrid theory. It splits the
apparently homogenous category of norms (and value-statements respect-
ively) into two radically different categories, one truth-evaluable, the other
not. Moreover, non-cognitivism does not give us any profound ground to
demand coherence of all-thing-considered value judgments (cf. Rabinowicz
1998, 17ff. and 23; Peczenik 1998b, 62ff.).23
A better theory is cognitivist, both as regards prima facie norm- and
value-statements, and as regards all-things-considered norm- and value-
statements. But such a theory must avoid the dogmatism all too well known
from classical Natural Law theories. What we need is a cognitivist theory
preserving the intuition that it is easier to contest weighing in particular
cases than to frontally attack such values as human life.
Now, such a theory is implicit in Jaap Hage's idea that there is no fixed
demarcation line between the objective and the relative (cf. Hage and
Peczenik 2000a). As long as we presuppose the concepts and standards of
23
Rabinowicz wrote: ``Suppose we discover that our system of beliefs is internally incoherent; or
suppose we acquire a new belief that does not cohere with what we have believed before. In
both cases, we should make changes in our system of beliefs that make it coherent. Now, the
problem is that we can make such modifications in different ways and we need to decide which
way to choose. Perhaps some such modifications would be more far-reaching than others: Some
modifications would demand that we make more changes in our belief system. It is here that the
principle of conservatism comes in: A smaller modification is to be preferred to a larger one.
Thus, conservatism is a principle of minimal change. Peczenik accepts this principle [_] but does
not explain why it should be accepted. One natural answer would be that minimal change is to
be preferred on pragmatic grounds: Smaller changes are easier to make and are less costly than
the bigger ones. However, this answer is not very satisfying: Sometimes bigger changes may
be easier to effectuate than the smaller ones. Furthermore, the fact that one change is easier to
make than another one does not make it more justifiable if our aim is truth rather than conveni-
ence. This suggests a different explanation instead: When I have to make a bigger change in my
beliefs, the number of beliefs I have to give up will normally be higher (at least if beliefs can be
counted somehow, which may be questioned). But as long as these beliefs are held by me, as
they are before the change, I consider them ex ante to be true. Thus, insofar as my aim is truth,
the whole truth, and nothing but the truth, giving them up is a real loss from the ex ante point of
view. Since I should minimize the losses, the principle of minimal change is vindicated.''
(Rabinowicz 1998, 17±18)

moral-cum-legal practice, we take the knowledge relative to them as objec-

tive knowledge about the world. Thus, dependence of judgments on con-
cepts and standards does not rule out their objectivity. Only when we start
doubting about knowledge we allegedly possess relative to those concepts
and standards, do we switch to a relativist language and add such clauses as
`Ì think that,'' `ìn my opinion,'' and so on. Now, it is particularly strange to
doubt basic moral values, and it is easier to doubt judicial decisions. But, as
stated before, the difference is not sharply determined by basic philosophy.
The borderline is fluid, contingent. Applied to our context, this implies that
juristic doctrines may be regarded as giving a kind of juristic knowledge
until the theorists confront a doubt as to what they ``really'' do.24 Yet, the
theories survived such doubts, surely not intact, but not extinct either. This
gives a reason for relativising the doubt that relativises the theories.
10. About Fragmentation

Juristic doctrines are interesting only if they have normative consequences.
But it is difficult to say how they can be normatively binding. This fact
creates a problem as to their relation to basic moral philosophy. No doubt,
the most profound discussion of normative problems, taken up by juristic
doctrines, must ultimately be based on an overarching moral theory. Then,
why do we also need the juristic doctrines?
There are at least three different reasons for that.
There is more than one conception of an overarching moral theory.
For example, some hard cases involving negligence and adequate causation
in torts could be judged differently from a utilitarian, a Kantian, or an
Aristotelian point of view.
Moreover, such an overarching moral theory may be difficult to apply.
For example, the utilitarian calculus applied to such hard cases must
be immensely complex. Another example: A reasonable overarching moral
theory is composed of principles that must be weighed and balanced in
particular cases. Such weighing may be difficult to directly justify on the
basis of philosophical considerations. Then, the juristic doctrines can give
the rules of thumb to approximate a utilitarian calculus, or to approximate
the weighing of basic principles.
Last but not least. Concepts evolved within legal doctrine are not always
easily related to moral philosophy. Legal tradition and the tradition of moral
philosophy have many links, yet they are not identical. For example, the
legal one is more Roman, the moral one more Greek. For many reasons, the
wealth of deliberations provided within the legal doctrine is not always easy
to translate into the concepts of moral theory.
24
The doubt is quite old. For example, each generation recalls the lecture given by Kirchmann in
1848 in Berlin, claiming, inter alia, that legal doctrine was useless, both as a science and as a
technique for solving conflicts.

The conclusion must be that the juristic doctrines are valuable `ìslands'' to
be linked with moral theory by ``bridges'' and ``ferries.'' They are not to be
separated from moral theory. Neither are they to be reduced to it.
This phenomenon is not surprising. Similarly, any scientific theory claims
to be coherent with a certain branch of science. Generally, each fragment of
knowledge claims to be coherent with a certain branch of knowledge. The
branches are like islands; they do not form a single continent. But they are
connected with each other. A plausible way of stating this connection is to
say that there are bridges between them. The metaphor of bridges echoes
``bridging implications.'' But a better metaphor is ferryboats, not bridges.25
For a bridge is fixed, it stands where it is. A boat, on the other hand, can find
different ways between the islands, depending on the (intellectual) weather.
Islands are knowledge, boats are philosophy. Philosophy is not fixed.
Philosophy has no paradigms. Yet, philosophy links the parts of knowledge
into a coherent whole. The merit of reductionism is to look for the links. Its
mistake is to look for fixed bridges, instead of using philosophical
(metaphysical?) ferryboats.
Accordingly, Eng (1998, 19±21) claims that there exist areas in [_] actually
existing argumentation and language that (a) are relatively well delimited,
and (b) have a certain independence with regard to basic ontological and
epistemological positions. The independence might be of various kinds
and must be shown in particular contexts. But, let me add, concurring with
Eng, we also need the philosophical links between such areas and the rest of
the worldview (cf. Eng 1998, 582±4, and, e.g., 361±5).
11. About Locality

Another objection to juristic doctrines is that they are local. They seem to
account for peculiarities of the law of a certain state at a certain period. A
critic would emphasize that this kind of locality differs from universality,
inherent in both science and morality.
However, the locality of theories of legal science is quite relative.
First of all, such theories are often used outside of their country of origin.
For example, the German theory of adequate causation influenced different
European countries. Let me only mention that it has been vividly discussed
both in Poland, and in Sweden. More than that, some theories of this kind
have ancient roots and still preserve actuality. Indeed, they are founded on
Roman and medieval scholarship. For example, the maxim audiatur et altera
pars, stating that both parties should be heard in the trial, constitutes the core
of many theories of adversary legal process. Such theories appear in many
countries and the maxim has been characterized as `ùralter Rechtssatz, nicht
erst roÈmisch'' (Liebs 1986, 32). Another example: The maxim pacta sunt
25
I am grateful to HaÊkan Gustafsson for this profound insight.

servanda, to be found at the core of many theories of contracts, is a Roman

principle, cited both by Cicero (De officiis 3, 92) and in Digesta (2, 14, 7 § 7,
etc.).26
Thus, at least the core of some juristic doctrines is a part of the common
cultural heritage of the Western world.27
Furthermore, this community of values is interlinked with a community
of concepts. Such concepts as ``tort,'' ``contract,'' ``property,'' `òwnership,''
etc., may have different extensions in different countries, yet they have the
same core in many countries. Again, these concepts are a part of the cultural
heritage of the Western world.
12. As to Legal Positivism

Since juristic doctrines are fragmented and local in the sense discussed
above, they appear to reflect the core intuition of Legal Positivism. Aulis
Aarnio put it in the following way:
The matrix of legal dogmatics [_] would seem to consist (at least) of the following
elements [_]
(1) A set of legal philosophical background assumptions and/or commitments, normally
implicit, very seldom explicitly expressed. As examples can be mentioned ideas of
(a) the origin of law, (b) the validity of legal norms (problem of the rule of recogni-
tion), (c) the concept of norm and normativity, (d) the idea of rational discourse.
The basic assumption concerning the origin of law seems to accept an idea of the
societal sovereign. The bindingness of legal norms does not need any natural-law
backing assumption about some kinds of ``superior'' legal principles behind the
positive principles. In this sense, the basic matrix of legal dogmatics seems to contain
a decisive legal positivist basic standpoint. (Aarnio 1997, 82)
This opens the question whether the defense of juristic doctrine does not
commit the present author to a kind of Legal Positivism, let it be a weak one.28
26
By the way, isn't this principle much older than that? Surely, the principle in question is a pre-
requisite of the very idea of a contract. So if there had been contracts among, say, ancient
Egyptians, the principle must have been in force even then.
27
This conclusion is indirectly confirmed by the well-known fact that the statutes of one country
can be adopted as valid law in another country. Thus late Roman statutes and other Roman
sources of the law exerted great influence in many European states. It is sufficient to recall how
the codification performed by the Emperor Justinianus in the 6th century affected the work of
the glossators and post-glossators in the 12th, 13th and 14th centuries as well as the work of the
German pandectists as recently as in the 19th century. The Roman law has been thus adopted in
Germany, Austria, and the Netherlands, among other countries. Later, German and Swiss
statutes have been adopted in, e.g., Japan, China, and Turkey. English Common Law has been
adopted on a large scale in the United States, Canada, Australia, and even partly in India, East
Africa, etc.; French civil law has been adopted in a number of countries, inter alia in part of
Poland, etc. The fact that such reception is possible indicates a common value basis of the laws
of many countries. This common value basis makes it easy to use juristic doctrines from one
country in another one.
28
See again George 1996 about the analytical problems of legal positivism.

Fragmentation and locality of juristic doctrines would be unproblematic if

the binding law itself is fragmented and local. It would, however, be a
problem if the law itselfÐcontrary to the legal-positivistic claim to separ-
ation of law and moralsÐwere inherently linked to morality. Morality
appears to be universal, both in its content and in its geographical sphere
of application. The juristic doctrines are not. Should not then the doctrines
be conceptually separated from morality? Consequently, should not the
law itselfÐabout which the doctrines have some truth to tellÐbe thus
separated? To put it sharply: Is not the existence of legal doctrinesÐ
fragmented and local as they areÐa powerful argument for the conclusion
that doctrinal jurists must consider themselves as legal positivists, on pain of
self-contradiction?
To answer this objection, let me state from the outset that the label ``Legal
Positivism'' is the most misunderstood one in the whole legal vocabulary.
Once one starts to speak about Legal Positivism, one must use much more
energy to clean up the misunderstandings and to fix the words than to deal
with the problem itself. Having something else to do, I do not make any
effort in this direction. Let it suffice to simply state two things.
First, the points about the locality and fragmentation of juristic doctrines
must be qualified with so many comments (see above) that one would be
well advised not to derive strong conclusions from the phenomenon.
Second, the universality of moralityÐas opposed to the social and hence
local character of the lawÐis itself open to much discussion. For example,
a communitarian would see all morality as inherently bound to a certain
society. Moreover, one need not be a communitarian to see some non-
universal content in morality. Some communitarian components are present
also in theories proclaiming themselves as, e.g., contractarian. Thus, Scanlon's
background assumptionÐleading to contractarianismÐis the idea that moral
obligation must be justifiable to persons (Scanlon 1998, 154), not in abstracto.29
At the end of the day, Scanlon admits that circumstances of social life may
affect the content of moral right and wrong. This comes close to commu-
nitarianism. Scanlon thus states:
I am not claiming that social meanings alone determine what is right and wrong.
What I have done is, rather, to explain how these meanings can have moral force by
placing them within a larger contractualist moral framework [_] The account I have
offered [_] does this without presenting these judgments as deriving from any
substantial universal principle. (Scanlon 1998, 342)
Moreover:
How many valid moral principles are there, then? An indefinite number, I would
say. (Scanlon 1998, 201)
29
It contrasts with descriptive knowledge that is objective, impersonal, and justifiable in the
sense that the justifying person keeps his own views coherent.

Finally:
What people have reason to want depends on the conditions in which they are
placed, and among these conditions are facts about what most people around them
want, believe, and expect. (Scanlon 1998, 341)
In sum: In view of such a theory, moral principles are also local and
fragmented, in their own way. If then the law were inherently (and thus
`ànti-positivistically'') linked to morality, the relative locality and fragmen-
tation of the juristic doctrines would not appear strange at all.
The simplest morally based explanation of locality would be that universal
moral principles, or at least a general moral theory (such as Scanlon's) may
well entail that what is binding in a given society partly depends on practices
that are common within this society. This observation applies to local moral
opinions, to local legislation, and to local juristic doctrine.
13. Legal Theory and Legal Philosophy

Let us now reflect a bit about what has been done in this paper. The problem
was how to make sense of juristic doctrines, with their normativity, onto-
logical obscurity, vagueness, fragmentation, and locality.
As to normativity, we have simply re-stated the well-known objection to
normative reason, and suggested that the objection is not convincing.
As to vagueness, we have assumed a general theory of defeasibility,
stating that legal doctrine is open to spontaneous and reasonable exceptions,
and concluded that such openness is a general feature of human normative
judgments.
As to ontology, we have outlined a complex theory of motivating and
personal facts.
As to fragmentation, we have drafted a metaphor of islands and bridges
in the sea of the world picture.
As to locality, we have stipulated a common cultural heritage of the
Western world.
All five moves are par excellence philosophical. As such, they are inescap-
ably controversial. Does it mean that juristic doctrines are inherently linked
to a definitive philosophical position, with all its weaknesses?
Not at all. The point is that legal doctrine is (or at least was) a fact. Serious
and able people devoted their lives to it. I prefer philosophyÐeven a risky
oneÐshowing that they have been right, to a philosophy making big fools of
them. The conceptions of normative reason, defeasibility, complex ontology,
structure of knowledge, and cultural heritage drafted above, hint at one
possible philosophyÐor a cluster of philosophiesÐof this kind. However,
this says nothing about the (im)possibility of a better philosophy behind
juristic doctrines. To discover such a better philosophy is a matter for future
philosophical research.
We can distinguish here four levels: meta-philosophical, philosophical,

law-theoretical, and law-doctrinal.
At a meta-philosophical level, we can follow the already mentioned
observation about the fluid limit between objectivist and subjectivist talk.
We talk in an objectivist manner about things, facts, values, etc., that are
there, unless we are confronted with a doubt. When confronted with a
doubt, we relativize and use phrases like `Ì think that,'' etc.
At a philosophical level, there occurs the question whether we have a
reason to doubt. Such reasons can be stronger, or weaker. For example, there
is only a very weak reason to doubt the very existence of an external world,
or existence of other people. Then, there is a slightly stronger reason to
doubt causality, etc. And there is a still stronger reason to doubt moral
normativity. Anyway, at the level of philosophical basic positions, a phil-
osopher opts for a philosophical theoryÐsometimes with the claim that this
is the only true theory, sometimes without such a claim. This theory gives
him the basic reasons for or against doubting juristic doctrines. Then, he
derives conclusions as to the law, juristic methods, etc. However, all such
basic philosophical reasons are linked to complex philosophical positions. A
Kantian would doubt other things than a Humean, and so on.
At the level of legal theory, we can simply state that the philosophical
positions are in fact controversial and then we can abstract from them more
or less, depending on the question to be discussed.30 At this level, a jurist
may start from a description of the legal method, note that many inter-
pretations of this method are possible, and that they vary with the assumed
basic philosophical position. Then, he can note that the legal method makes
sense when one philosophical position (philosophical theory) is assumed,
and no sense when another is assumed. He can even note that different
fragments of legal method make sense under different philosophical theories.
If he is a philosophical relativist, he stops there, like Jerzy WroÂblewski
(cf. Peczenik 1975)31. But he can also make another philosophical choice,
and tell us that the general philosophical theory that implies that legal
doctrine makes sense is probably the true one. To conclude this, he needs
the assumption that the persistent practice of jurists cannot be all wrong.
This assumption is, of course, a general philosophical assumption, and must
be argued for at the philosophical level.
At the doctrinal level, the jurist often produces theories without reflecting
about their philosophical implications. This results often in a mixed position.
Some philosophical positions fit one fragment of juristic work, other phil-
osophical positions fit another fragment. The jurist often does not care about
30
Doing so, the theorist of law utilizes the result of thinking at the meta-philosophical level. On
the meta-philosophical level, we can say thatÐlogically speakingÐboth the objectivist and the
relativist way of speaking are possible. Thus, the meta-philosophical level is a device explain-
ing how a theorist of law can abstract from some philosophy, even when admitting that the
inspiration of his work is philosophical.
31
The most comprehensive English presentation of WroÂblewski's theory is WroÂblewski 1992.

it, and works in a manner he intuitively finds reasonable. In this manner,

legal doctrine implicitly moves back and forth between different epistemo-
logical positions (foundationalismÐcoherentismÐscepticism), and between
different (onto)logical positions (logical atomismÐholism).32
Last but not least: What is the point of such reflections as these? The main
point is practical: To defend legal doctrine against philosophical objections,
and to point at the wide range of philosophical positions that make legal
doctrine not only possible but also justifiable.
A politically minded critic can now say that all this talk is just a reaction to
the democratic division of powers. He can also say that political democracy
demands political pluralism, and that political pluralism rules out theories
of normative juristic knowledge. Finally, he can accuse the present author of
the intention to shift some power from the parliament (or even from the
People) to some older male jurists. To such a critic, I can answer three things.
First, his worries are understandable. Indeed, I would like to transfer some
power from the politicians to the jurists. But second, there are politically
philosophical reasons for doing it. These reasons are, however, discussed in
another paper (Peczenik 2000). Third and last: Whether the views developed
in the present paper are justifiable or not (and thus probably true or
probably false), depends on the soundness of the theoreticalÐmostly phil-
osophicalÐreasons preferred here. Their justification and truth-value is, on
the other hand, utterly independent from the position of the author as to the
best division of powers in the society. The arrow points in the opposite
direction. Namely, if the views developed here are sound, they bring con-
sequences as to the best division of powers.
This is a paper in legal theory, and legal theory is a philosophical
discipline with claims to truth. It is not an exercise of political arbitrariness.
14. As to Legal Theory

Indeed:
What is legal theory? It has many names: general theory of law, theory of state and
law, allgemeine Rechtslehre, jurisprudence. Its content is a mixture of legal philosophy,
methodology of law, sociology of law, logical analysis of normative concepts, some
comparative law and some study of national positive law. The didactic value of legal
theory is great. It can give students of law elementary information about philos-
ophy and social doctrines. I believe that such information can facilitate the work of
lawyers. The scientific value of legal theory is, however, problematic. Nobody can be
competent in philosophical, logical, sociological and legal disciplines at once. The
progress of doctrine is rapid. A lawyer, even if working in legal theory, needs greater
effort to become an expert in some part of logic or philosophy or sociology. In order to
do any creative work of value, he must rather find a topic whose discussion requires
a combination of his legal qualification with his general knowledge of the mentioned
32
This can only be hinted at here. The problem must be dealt with elsewhere. A further problem,
not dealt with here, is more basic: Must it be so? Is it not so in all common sense?

extra-legal disciplines. I hope to find such a topic in the province of legal principles.
But if such a topic cannot be found at all, a specialist in legal theory would soon only
be a teacher while his scientific position would recall that of a hero in A. Bester's doc-
trine fiction: Education: none. Skills: none. Merits: none. Recommendations: none.
(Peczenik 1971, 17)33
I had forgotten those words, written more than 30 years ago. I recall them
now, only because Mark van Hoecke has kindly quoted them. Yet, I still
agree with everything, except one sentence. Instead of searching for legal
theory `ìn the province of legal principles,'' I prefer now to go back to my
original idea from 1966 (Peczenik 1966, 1967), and to focus on the justifi-
cation of legal doctrine. In my opinion the core of legal theory is a philos-
ophical discipline, analogous to a philosophy of science.34 It is indeed a
philosophy of legal doctrine. Legal doctrine itself is something peculiar.
Legal theory tells us how peculiar, and it also tells us the conditions under
which the legal doctrine can be OK.35
15. The Last Reflection: Legal Theory Within Juristic Doctrines

This observation does not imply anything at all as regards the division of
labour between professional legal theorists and jurists working with doc-
trines in specific branches of the law, such as private, public, criminal, and
procedural law. Juristic doctrines are not only in need of a meta-theory but
also in need of self-reflection, including a philosophical one. Some basic
problems are easier to solve at the level of generality displayed by legal
theory, others at a lower level of generality within particular legal disci-
plines. A good guess is, however, that these ``parties'' need each other. A
legal theorist faces a risk of knowing too little about technical details of the
law. An expert in a special legal doctrine faces a risk of being too narrow-
minded. Legal ``science,'' as all science, is a collective enterprise in which
different practices fertilize each other.
University of Lund
Box 207
S-22100 Lund
Sweden
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Ratio Juris. Vol. 14 No.

1 March 2001 (75±105)

A Theory of Legal Doctrine*

The work of legal doctrine is almost always value-laden. Legal doctrine is

Among general theories of legal doctrine, in brief ``juristic doctrines,'' one

Theories on Adequacy in Torts

# Blackwells Publishers Ltd 2001.

``negligence,'' according to all three kinds. If we need this term, what do we

Theories of the Sources of the Law

The Point of Legal Doctrine: Coherence

# Blackwells Publishers Ltd 2001.

is historical and philosophical4; it integrates exegetical and systematic

By means of the production of general and defeasible theories, legal doctrine

# Blackwell Publishers Ltd 2001.

arranged world. A few philosophers ask whether this conceptually ordered

Now, if I want to argue that I am justified in believing or preferring x, I must

# Blackwell Publishers Ltd 2001.

here that the principle of conservatism comes in: A smaller modification is to be

One can wonder why it is so. A simple explanation is that we prefer a

4. Objections to the Coherence of Legal Doctrines

# Blackwells Publishers Ltd 2001.

The Alleged Irrationality of Normative Theories

HaÈgerstroÈm's philosophy was more complex, but he, too, vehemently

# Blackwell Publishers Ltd 2001.

# Blackwells Publishers Ltd 2001.

utilitarians, rights theorists, particularists, and other moral philosophers

5. The Normativity of Juristic Doctrines

# Blackwell Publishers Ltd 2001.

norm-sceptics doubt, refute, or at least radically revise many concepts used

6. Vagueness and Defeasibility in Legal Doctrine

# Blackwells Publishers Ltd 2001.

defeasible. Vagueness is a matter of language, defeasibility in the law is

# Blackwell Publishers Ltd 2001.

# Blackwells Publishers Ltd 2001.

7. About Ontological Obscurity

# Blackwell Publishers Ltd 2001.

But law is not a mere convention. It is a product of convention and morality.

# Blackwells Publishers Ltd 2001.

# Blackwell Publishers Ltd 2001.

# Blackwells Publishers Ltd 2001.

By the way, the view that Humean psychology is insufficient to grasp

PetrazÇycki refused to simply analyse, for example, hunger as a combination

According to PetrazÇycki, there exist, inter alia, ethical impulsions (or

However, though undoubtedly a genius, PetrazÇycki was no philosopher. If

supported by the weighing of moral argumentsÐbe true, even if it is

# Blackwell Publishers Ltd 2001.

moral-cum-legal practice, we take the knowledge relative to them as objec-

10. About Fragmentation

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11. About Locality

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servanda, to be found at the core of many theories of contracts, is a Roman

12. As to Legal Positivism

# Blackwells Publishers Ltd 2001.

Fragmentation and locality of juristic doctrines would be unproblematic if

# Blackwell Publishers Ltd 2001.

13. Legal Theory and Legal Philosophy

We can distinguish here four levels: meta-philosophical, philosophical,

# Blackwell Publishers Ltd 2001.

it, and works in a manner he intuitively finds reasonable. In this manner,

14. As to Legal Theory

# Blackwells Publishers Ltd 2001.

15. The Last Reflection: Legal Theory Within Juristic Doctrines

# Blackwell Publishers Ltd 2001.