Special Workshop Abstract

There also practical reasons for explaining the lack of interest of legal theorists’ (and jurists in general) in legislative reasoning. The analog to judicial reasoning about questions of justification in legislative reasoning has some characteristics that make its analysis and evaluation difficult. The parliament’s debate (and the debate that takes place outside the parliament) about statutes is much less structured, and more open, than the motivation of judicial decisions. In any case, it would be impossible to use the tools that have been developed within the theory of legal reasoning in the last decades to give an account of legislative reasoning.

2. The differences between the context of law creation and the context of law application (and, therefore, between the legislator and the judge) are a good starting point for the study of legislative reasoning. Some of these differences are as follows:

• From the point of view of legal reasoners, judges are independent, they are not politically responsible, they have a stable function, and they are legal experts. In contrast, legislators represent a social sector’s interest or a class interest, they do not perform their function on a permanent basis, and they are not required to have any specific training. For these reasons, legislators do not have any of the three main obligations that are imposed upon judges. That is, legislators need not be independent, nor impartial, and they have no particular obligation to justify their decision (not at least an obligation similar to judge’s obligations to motivate their decisions).
• From the point of view of the characteristics and the organization of the legal institutions the situation is also very difference. Judges are unipersonal bodies or bodies with few members; court organization is designed so that, at least in most occasions, it is possible to reach consensus by deliberation; and judges cannot determine which questions they should decide. In contrast, modern legislative bodies are very large; they are designed to deal with disagreement, or to reach reasonable agreement on issues over which deliberators have—or represent—conflicting interests; and they have a very ample power to choose the topics about which they will both deliberate and decide.
• From the point of view of the pattern of reasoning that judges and legislators use there are also notorious differences. Judges’ basic model is deduction, which is a classificatory pattern of reasoning. The point is to determine if some facts fit the description of the legal rule, and therefore, if specific legal consequences must be imposed or not. As opposed to judges, legislator’s basic model is what Aristotle called—practical syllogism—or ‘practical reasoning’. The point is that, given a goal, one should show whether one should indeed achieve such a goal—or to which extent, instead of other alternative goals, and which are the means (the legal rules) that better serve that goal.
• Last, from the point of view of the criteria for evaluating argument, judicial argumentation aims (at least as a regulative idea) to arriving at the right answer in the particular case, and in so doing coherence (as opposed to mere logical consistency) seems to be a crucial criterion. However, in relation to legislation, it does not make sense to speak of a right answer. Almost never could one say that a particular statute, with such and such content and structure, etc. was the only possible one. In addition, coherence is not a pivotal criterion (or at least it is much less important in legislation than it is in adjudication), given that legislative activity is forward oriented and aims at innovating the legal system.

3. From the preceding paragraphs, it follows that there must be some difference between legislative reasoning and judicial reasoning. However, these differences cannot be too sharp. Both law making and judicial application are kinds of legal argumentation. The latter, in its turn, is a kind of practical reasoning, which aims to justify a particular course of action (and which may include theoretical arguments). Hence, we may speak of legal reasoning n relation to both a parliament debate over a statute and a motivation of a judicial decision because they both share a number of features; (i) in both cases there is an activity—or the result of an activity, which has language as its vehicle; (ii) they both result from a problem to which resolution legal reasoning contributes; (iii) they have basic units—arguments, which have premises and conclusions (input statements, and output statements), and (iv) they may be evaluated according to some criteria for classifying arguments (and argumentation) as valid, persuasive, fallacious, etc.

In addition, in law –and maybe in general, there is no single way of understanding argumentation. The foregoing elements may be interpreted in, at least, three different ways. We may speak of a formal conception of argumentation, a material conception, and a pragmatic one.

The formal conception (paradigmatic example: standard deductive logic) views reasoning as a series of uninterpreted statements, in the sense that it abstracts from the truth conditions and rightness of the premises and conclusion. It provides an answer to the question of whether some statements, i.e. conclusions, follow from others, i.e. premises. Rules of inference provide the criteria of sound reasoning. And it provides patterns or forms of arguments.

For the material conception, what is essential is not the form of the statements, but what it is makes them true or right, i.e. the natural facts, social facts, or institutional facts that they refer to. It answers the question of what we should believe, and what we should do. Hence, it amounts crucially to a theory of the premises, that is, a theory of the reasons for believing and doing, or attempting to do some act. Because of that, its criteria of rightness cannot be purely formal. The crucial issue is that of determining, for example, under what conditions a particular kind of reason should have priority over other. These criteria are not rules of inference in the sense of formal logic. Instead, like the rules of the legal method, they depend on what the world is or ought to be.

Last, the pragmatic conception holds that argumentation is a kind an activity (or a series of speech acts) that aims at persuading an audience, or negotiating with others in order to arrive at an agreement on a theoretical or practical issue. The success of argumentation depends on whether one in fact is persuasive or reaches an agreement, while observing some rules.

4. The goal is to link these conceptions of argumentation with the characteristics of legislation so that we may answer the following three key questions: how should we analyze legislative argumentation?; what are the criteria for evaluating legislative argumentation; and how should we reason in a legislative context? While the former two questions are ex post, and they may refer both to the product of the legislative activity and to the activity itself, the latter is ex ante.

4.1. The analysis of the legislative activity which involves reasoning requires a dynamic outline (or dialectic one) which shows how different actors make different moves (argumentative speech acts) in different moments. Given that legislative argumentation (let us consider a debate in a parliament) does not completely fit the model of critical discussion (it is not a dialogue in which each participant feels obliged, for example, to meet the objections that the other part raises), this outline specify a number of stages in the discussion, the topics of the discussion (in each of these stages), and the attitude (rejection, acceptance, etc.) of each of the participants, and the reasons they give in favor or against it.

If, as opposed to this complex activity, we would like to analyze the reasonings of each of the participants, we could use an arrow diagram. Such a diagram could give an account of the following items: the flow of reasoning (even if it is not a real flow), the diverse speech acts involved (questions, conditionals, assertions...); the propositional contents of them; and the arguments stricto sensu, that is, the reasons for and against a particular propositional content. Given that legislation is a rational activity with particular ends and values, the thesis which are the object of discussion would aim at showing which content an statute must or must not have in order for it communicable, and to enjoy the properties of systematicity, efficacy, social efficacy, and axiological and evaluative adequacy.

4.2. The evaluation of the reasonings in the legislative context (as well as its analysis) has different characteristics depending on whether they are produced in the pre-legislative stage (before the subject matter is considered in the formal legal organ: the parliament), legislative or post legislative. They also differ in relation to whether they are reasonings produced by the legislature, citizens, mass media, etc. As it was said before, the criteria of evaluation cannot be identical to those that govern judicial argumentation. The evaluative criteria for legislative and judicial argumentation differ even when the former are considered from a formal perspective. Valid patterns of deductive logic are obviously the same, whether they are used in law application or law production. Nevertheless, in legislation there are some distinctive kinds of reasoning which differ from the typical judicial arguments (a pari, a contrario, etc.). Likewise, from a pragmatic perspective, the audiences of judicial and legislative arguments are not exactly overlapping, neither is the argumentative context. However, the most radical difference comes to light when we consider the material perspective of argumentation. Judicial argumentation aims at justifying a decision in a concrete case, and on the basis of, to a large extent, previously established norms. In contrast, legislative argumentation aims at justifying (or rejecting) general rules to be applied in the future to mostly generic cases. And, as it was said before, for the purposes of justification, it is required to show that the content (and structure) of the law has some characteristics, i.e. communicability, systematicity, etc. The weigh and strength of these criteria (reasons) differ depending on the stage under consideration (prelegislative, legislative or post legislative). In addition, these criteria are structured (for instance, axiological reasons have a primacy over the rest, reasons from efficiency have a transverse nature, etc.).