PARADIGMS OF JUSTIFYING LEGAL DECISIONS

Jerzy Wr6blewski

I. INTRODUCTORY OBSERVATIONS

1. In contemporary language the term "legal decision" has

many meanings. The core meaning seems to be that a deci-
sion is legal if it has some legal consequences and,
therefore, is made by an authorized or competent agency.
In contemporary states there are many authorized agen-
cies which are making legal decicions. In spite of the
shift from the traditional non-interventionist State
towards the contemporary interventionist one the role of
judicial decision is looked at as the incarnation of the
socially best legal, impartial, objective, just under the
law, etc. decision(I). It is so in spite of the fact that
the growing bulk of administrative regulation and admini-
strative decisions seems to push the judicial activity
from its earlier position. Judicial control of the admini-
stration is symptomatic for the place of judicial decision
and the values it stands for. In several countries there
are alternative ways of solving controversies replacing
the judicial process, e.g. the arbitration or pre-trial
proceedings. This seems to be a symptom of searching new
ways of solving disputes which for some reasons are
thought of as better than the court. The relevance of this
phenomenon cannot be discussed here. It seems, therefore,
that judicial decision stands as the best institution gua-
ranteeing the highest standards of decision in terms of
values listed above. This is the reason why we will take
judicial decision as the topic of the present essay.

2. The judicial decision is a decision made within a

framework of the procedural institutions of a determined
type of legal systems operating in a socio-political and
cultural context of a given society.
The rules of procedure single out some judicial acti-
vities as decision-making. We are not interested, however,
in the procedures of concrete systems. From the theore-
253

A. Peczenik et al. {eds.}, Theory of Legal Science, 253-273.

Iii> 1984 by D. Reidel Publishing Company.
2S4 CHAPTER 3

tical point of view a judicial decision is thought of as a

choice of alternatives in the process of the application
of law. Judicial decision, therefore, is either the "final
decision" disposing of a case or a "fractional decision"
determining some issues relevant for making this final
decision.
As far as the legal framework of judicial decision is
concerned, we take the systems of statutory law, as
opposed to the systems of common law. This macrocompara-
tivist typology is widely discussed but it is relevant for
our purposes. The ways of justifying judicial decision are
bound with the expectations of the role of the judge and
the institutional bases of his activity, and here is the
relevant difference between statutory law and "judge-made-
law" ideas.

3. In contemporary culture judicial decision is expected

to be a rational decision. In spite of all discussions
concerning the concept of rationality it can be assumed,
that the rationality of a judicial decision can be expres-
sed in its justifiability(2).
Justification is thought of as giving arguments sup-
porting a judicial decision. The justification of a judi-
cial decision can be qualified as good or bad depending on
its features and the criteria of the criticism. The deci-
sion is internally rational when it is based on the
premisses it accepts. The premisses themselves, however,
can be also analyzed and either approved of or rejected,
and depending on that the decision is treated as exter-
nally rational or not.
In current practice of statutory law systems not all
judicial decisions are in fact justified. This is so
because of quite obvious pragmatic reasons. The law deter-
mines the si tuations in which the decisions ought to be
justified and determines some of their elements ("minimum
legal justification of judicial decision"). Judicial prac-
tice shapes some accepted ways of justifying the deci-
sions, which can go beyond the requirements of law ("con-
crete legal justification of judicial decision").
There is the problem of a theoretical and practical
paradigm of justification of judicial decision. These
paradigms single out the basic elements of justification
of judicial decision based on a theoretical analysis or
practice of the ways in which the judge can justify his
choices. The present essay will analyze this problem.
 OBJECTIVITY AND RATIONALITY 255

II. CONCEPTION OF JUSTIFICATION OF JUDICIAL DECISIONS

4. Justification of a statement gives arguments for its

support. The arguments in question can be presented at
least in three principal manners.
Firstly, one describes the arguments which are given
in justification, and the result of this is a presentation
of justifications given in some area of reasoning. Genera-
lizing this kind of description one constructs a descrip-
tive model of justification.
Secondly, one formulates the arguments which could be
given for supporting some statements. We have to do with a
theoretical approach which can eventually result in pre-
senting a theoretical model of justification.
Thirdly, one singles out arguments which should be
used to justify a statement according to an assumed pat-
tern of a proper justification. These patterns, if
presented in a more or less systematized matter, appear as
the normative model of justification in a given area of
reasoning.
These general observations cover all areas of reason-
ing where justification is given and/or expected. The same
holds, of course, for judicial decision. One describes the
justification eventually searching for a generalization of
the "concrete legal justification" in some descriptive
model. One analyzes the justification theoretically and
one can construct a theoretical model of justification.
Last but not least, one analyzes the patterns of due jus-
tification either formulated by law ("minimum content of
legal justification") or in an ideology of judicial deci-
sion-making eventually including some theoretical ideas of
rationality.

5. The most basic typology of justification consists in

singling out an internal and an external justification.
The former is defined as a justification of a conclusion,
i.e. of decision, by its premisses according to the
accepted rules of reasoning. These premisses in judicial
decision cover the knowledge and the evaluations (prefe-
rences) of the decisionmaker. The latter deals with the
correctness of these premisses(3).
From a methodological point of view there are several
256 CHAPTER 3

types of justification(4). Justification sensu largo gives

reasons for any statement appearing in a discourse. Veri-
fication is a justification sensu largo which deals with
sentences, i.e. with statements which are either true or
false in a determined language. Justification sensu
stricto is a justification sensu largo of a statement
which is not verifiable in the determined language. The
concept of verification is linked with philosophical and
logical assumptions. The verification depends on ontology,
e.g. materialist, idealist, or materialistically or idea-
listically oriented culturalist ontology. The dependence
on logic accepted in the language in question manifests
itself in a verification based on alethic logic or on a
non-alethic logic, provided that each logic is a formal
calculus interpreted in the determined language.
Justification sensu stricto deals with other argumen-
tative techniques than verification. The most common name
for them is a "non-formal logic", although there are
several opinions against any use of the term "logic" in
this context. In any case this area of reasoning uses
arguments linking various statements in practical dis-
course. Their qualification is not in terms of truth but
e.g. in those of good reasons, persuasiveness, etc.

6. Justification of judicial decision is, as a rule,

treated not in terms of verification, but of justification
sensu stricto.
Judicial decision should be justifiable: the decision-
maker should be able to present arguments supporting it.
These arguments usually refe r to chosen direct ives and/ or
to evaluations of the decision-maker and, therefore, they
hardly can be presented as verification, but in some
rather exceptional and artificial situations, fulfil
determined extremal conditions. I shall write about justi-
fication of judicial decision as a justification without
analyzing whether a concrete type of decision is a verifi-
cation or a justification sensu stricto.

III. THEORETICAL PARADIGM OF JUSTIFICATION OF A JUDICIAL

DECISION

7. From the theoretical point of view any analysis of the

justification of judicial decisions depends on the theory
 OBJECTIVITY AND RATIONALITY 257

of judicial decision-making itself.

This theory is based on an analysis of decision-making
as an empirical cultural phenomenon. The theory in ques-
tion depends also on the general theoretical framework in
which the decision and its justification are placed. One
can, e.g. use a decisional, an informative or a functional
model(S).
The theory of judicial decision depends on the view of
its justification as a kind of reasoning. And this reason-
ing is described within various theoretical frameworks.
E.g. one treats it as deductive reasoning, as practical
reasoning, as rhetorical and/ or topical argumentation, as
a linguistic game, as a transformation etc.(6)
In the present essay I will deal with the justifica-
tion of a judicial decision from the meta-theoretical
point of view. This means that I shall use a conceptual
apparatus which is as little as possible theory-laden,
without committing the analysis to any of the controver-
sial explanations of justificatory reasoning in terms of a
determined theory. I will try also not to depend too much
on some generalized practice of justification, which can
stimulate theory and which is basic in dealing with justi-
fication from the practical point of view (Cf. part IV).
These meta-theoretical reservations are, of course,
only a matter of degree. One cannot deal with judicial
decisions and their justification without taking some
theoretical position. I hope, however, that the position
implied by or presupposed in the present essay is so ele-
mentary, that it can be combined with most of the current
theories of judicial decision and its justification.

8. The search for a theoretical paradigm of justification

of judicial decision does not concern any heuristics of
this decision.
We are dealing wi th a theoretical decisional model of
the judicial application of law as a set of fractional
legal decisions leading to the final judicial decision.
The theoretical assumptions concerning the decision-making
are simple:
a) The decision-maker has to make a choice of the alter-
natives of behaviour he is aware of, viz. he bases his
decision on information he uses.
b) The choice of the alternatives of behaviour is made
according to the preferences of the decision-maker as
criteria of choice. These criteria form some more or less
258 CHAPTER 3

systematized aggregates; if there are some collisions

between the preferences in question then some second order
criteria are needed to solve them.
c) The use of the criteria of choice demand, as a rule, a
knowledge of the decisional situation, evaluations, and
more or less complex reasoning: owing to these factors the
choices of different decision-makers concerning the same
set of alternatives could be different.
d) The decision can be expressed in various ways, and
especially in verbal or non-verbal behaviour. We are
interested here only in the former case, because this is
the case of judicial decision.
e) Depending on the circumstances some decisions are
justified by giving determined supporting reasons. The
justification, as a rule, is presented when the decision
is controversial(7) or when the justification is a duty
imposed by a rule in force. The former situation demands a
justification before a certain audience or before the
decision-maker himself in the case of post-decisional con-
flict. The second situation is typical for the "minimum
legal justification" and will be dealt with below/point
19) •
This elementary set of theoretical theses can be
accepted as a rule, in contemporary theory of judicial
decision-making. The only argument against them could be
that some judicial decisions are simply "inferred" from
the premisses without leaving any place for any choice.
Against this argument one argues that according to theore-
tical analysis there are no such situations, or they
appear as practically quite exceptional extreme cases(8).
Moreover, treating decision as a conclusion in terms of
logic implies several rather problematic conceptions of
the involved logic and appears not as a description but as
a fragment of a determined ideology of judicial applica-
tion of law( 9) •

9. According to the decisional model of judicial applica-

tion of law there are the following types of fractional
judicial decisions:
a) the decision of validity, which states that the
applied legal norm is valid and applicable (or- exceptio-
nally - only applicable(10» in case;
b) the decision of interpretation, stating that the norm
to be applied has a determined meaning;
c) the decision of evidence stating that some facts of
 OBJECTIVITY AND RATIONALITY 259

the case are admitted as existing in the determined

spatio-temporal dimensions;
d) the decision of the choice of consequences stating
that according to the applied norm the proved facts of the
case have determined legal consequences.
In the justification of fractional decisions one
refers to the "sources of law" which are selected by the
decisionmaker. Because of this I single out a source--
decision, which is a sort of meta-decision in relation to
the fractional decisions enumerated above.
The final judicial decision disposes of the case. This
decision is prepared by and/or justified by the fractional
decisions.
Each of the decisions in question is expected to be
justifiable although the legal regulation of justification
is interested mostly in the final judicial decision
thought of as "the judicial decision".

10. The decision of validity states that a norm N is valid

in the legal system LS in a determined spatio-temporal
dimension ST.
The concepts related with the decision of validity are
constructed by legal doctrine and used in legal practice.
Theoretically there are three basic concepts of vali-
dity, i.e. systemic, factual and axiological validity(ll).
The theoretical analysis identifies also another typology
of the concepts of validity made by linking them with the
singled out conceptions of legal system(l2). In any case,
to state that a norm N is valid one should use determined
criteria of validity. These criteria are implied by an
accepted concept of validity and can appear as the so--
called rules of recognition(13).
Let us use the most common example of the systemic
concept of validity related with the simplified legal
system consisting only of enacted legal norms. A norm N is
valid, i.e. belongs to the legal system LS in ST, if and
only if: "(a)N is enacted according to a norm valid in LS;
(b)N is not derogated by norms valid in LS; (c) N is con-
sistent with norms valid in LS; (d) if N is inconsistent
with norms valid in LS, then either it does not lose its
validity according to the accepted rules of the conflict
of norms, or N is interpreted in such a way that it ceases
to be inconsistent with the norms in question"( 14). The
singled out conditions of sys temic validity put together
appear as the conceptual criteria which can be transformed
260 CHAPTER 3

into a correlated rule of recognition.

The theoretical analysis demonstrates that the cri-
teria of the systemic concept of validity refer to evalu-
ations at least when dealing with a use of some of the
conflict rules and always when dealing with systemic
interpretation for removing the inconsistencies or a
choice of a fundamental norm(IS). The justification should
therefore be relativized to accepted values.
Analogous observations could be made concerning the
axiological concept of validity mentioned above, but this
is beyond the scope of the present essay. Using this one
example I would propose the normal formula for justifi-
cation of a decision of validity:
The norm N is valid in legal system LS in spatio-
temporal dimensions ST according to the rules of
recognition RR I , RR2 , ••••• RR and evaluations
r r r n
V l' V 2'····V n·
If some rules ot recognition are not linked with evalu-
ations, then the last part of the formula would be void.

ll. Operative interpretation occurs when the law-applying

agency has some doubts concerning the prima facie meaning
of the norm he tends to apply in solving the case(I6). The
decision-maker has to determine the meaning of the norm in
question in a manner sufficiently precise to use it in the
decision. There are many sources of doubt, the most
typical is the fuzziness of the legal language in which
the norm is formulated, but there are also the doubts
stimulated by the inconsistency of the interpreted norm
with other norms of the system and/or the evaluation of
the results of applying the norm in its prima facie mean-
ing in terms of their instrumentality, justice, equity
etc.On. The interpretive doubt is stated purely prag-
matically in the proces of decision-making and is expres-
sed as the lack of claritas: whether a norm is clear or
not depends, as a rule, on the evaluations of the deci-
s io n-make r •
Interpretative decision is justified by reference to
interpretative directives and evaluations. The directives
in question are sometimes rather loosely formulated rules
often referring to some evaluations, and they appear as
argumentative or topical devices indicating how the inter-
pretator should fix the meaning of the applied norm. There
are many conflicting interpretative directives gathered
together in sets called normative theories and/or ideolo-
 OBJECTIVITY AND RATIONALITY 261

gies of legal interpretation. The choice of interpretative

directives is based on evaluations, if it is not indicated
by the law itself. The same holds for normative theories
of interpretation.
There are two levels of interpretative directives.
Directives of the first level determine how one ought to
ascribe a meaning according to the relevant context of the
interpreted texts, i.e. the linguistic, systemic and func-
tional context. The second level directives determine the
way in which the first level directives are used (proce-
dural directives) and how to solve the conflicts between
the results of applying the first level directives (pre-
ferential directives).
The choice of the interpretative directives and, in
many cases, their use depends on evaluations. This is
typical of their argumentative and topical character, and,
therefore, there are rather wide interpretative lee-ways.
One can say that operative interpretation is, as a rule,
an evaluative process.
Notwithstanding the varieties of interpretative heu-
ristics(18) there is a normal formula of the justification
of an interpretative decision:
The norm N has the meaning M in the legal lang-
uage LL and/ or in the situation S according to
the first level interpretative directives DIll'
1 1
DI 22 ' •••• iDI n' a~ the second level directiyes
Df 1, DI 2, •• i DI ni and the evaluations VI'
V 2'····V 1n ; V l' V 2' •••• V2n •

12. A decision of evidence consists in stating that the

facts of the case F exists in the spatio-temporal dimen-
sions ST, on the strength of the material of presented
evidence E which is analyzed, approved of or rejected(19).
There is, as a rule, a legal regulation of the issues
relevant for the decision of evidence. The law in force
determines the following issues: (a) the facts to be
proved or which do not require any proof; (b) the admissi-
bility of proofs; (c) the manner of accepting and/or
rejecting the proofs; (d) the ways of controlling the
decisions of evidence if any(20).
The legal regulation of proofs is important for the
theoretical analysis because it shows the necessity of a
reference to legal norms in the justification of decision.
The legal regulation of proofs is expecially important
for determination of the rules of evidence. The compara-
262 CHAPTER 3

tive research supports the view that there are two types
of normative regulation of the reasonings operative in the
decision of evidence. Firstly. there is the so-called free
evaluation of proofs in which the rules of evidence are
the rules of the extra-legal sciences and of knowledge
based on common experience. The rules in question are the
empirical rules of evidence ERE. Secondly. there are legal
rules of evidence LRE which determine what facts have to
be treated as proved if other facts occur. The LRE are
typical for the so-called formal theory of proofs. Contem-
porary statutory law regulation of proofs combines both
theories. but LRE are exceptions in the prevailing domain
of the ERE rules. The decision of evidence is. thus. jus-
tified by reference to ERE en LRE rules.
Further. the legal regulation is relevant because of
the way of determining the facts of the case. The theore-
tical analysis demonstrates(21) that there are two oppo-
site types of the determination in question: on the one
hand the facts are determined descriptively. positively
and simply (e.g. "a birth") and there are also. on the
other hand. facts determined eva1uative1y. negatively and
re1ationa11y (e.g. "faulty omission of a statutory duty").
For some determinations of a fact a reference to evalu-
ation is needed. and. hence. this should be expres~ed in a
justification of the decision of evidence.
The decision of evidence is based on the material of
evidence. The decision-maker. according to the rules of
evidence and his own conviction. accepts some of them and
rejects the others. Even within the theory of "free
eva1ution of proofs" which is aimed at determining the
material truth(22). the decision of evidence should be
internally consistent. i.e. it cannot contradict the
accepted evidence and rules evidence. The normal formula
of the decision of evidence is:
The facts of the case F exists in spatio-tempora1
dimensions SF according to the evidence E I •
E2 ••• En and the empirical rules of evidence ERE I •
ERE 2 ••• ERE and/ or legal rules of evidence LRE I ,
n c c c
LRE 2 ···LREn • and/or evaluations V l' V 2.··· V n.

13. The decision of the choice of consequences consists in

determining the legal consequences of the facts of the
case according to the applied legal norm(23).
The range of the choice in question depends on the
formulation of the applied norm. The extreme cases are
 OBJECTIVITY AND RATIONALITY 263

that of no choice because the norm determines the only one

consequence, and that of a complete freedom of the deci-
sion-maker. The former is exceptional, the latter is
doubtful because the alleged freedom is moderated by the
general principles and axiology of the legal system the
applied norm belongs to. The usual situation is that of a
decisional lee-way within some limits and, moreover, there
are some directives of the choice of consequences formula-
ted in law and/or by legal practice and/or legal doctrine.
The directives of the choice of consequences either
determine the choice or only give some guidance enumera-
ting the factors which have to be taken into account
and/or aims which the decision-maker should follow. In any
case the decision of the choice of the consequences has to
be justified by the directives of choice DC. The direc-
tives in question are, as a rule, linked with the relevant
characteristics of the facts of the case and depend on
their evaluation. Evaluations are needed also for the
choice of the directives of the choice of consequences and
for their use.
The normal formula of the decision of the choice of
consequences is:
The facts of the case F with the characteristics
Cl , C2 , ••• C have the legal consequences DC l ,
LC 2 , •••• LC naccording to the applied norm Nand
the direct~ves of the choice of consequences DC l ,
DC 2 , •••• DC n and/or evaluations vel' v e 2 , •••• v e n •

14. In all justifications of the fractional decisions des-

cribed above there are some references to the norms or
directives which have to be accepted by the decision--
maker. The rules referred to are treated as the arguments
of justification. In a rather loose legal terminology they
are referred to often as "sources" of law and/or of a
decision. There is a variety of sources and the decision--
maker should decide what sources he uses. We can treat the
decision concerning the sources (the source-decision) as a
general meta-decision in respect to the remaining frac-
tional decisions.
Among the sources in the statutory law systems one
singles out three categories of sources: the must-sources,
the should-sources and the may-sources of law(24). The
tripartition of these sources is based on some general
features of the law and of the ideology of decision--
making.
264 CHAPTER 3

Each category of sources is complex and even between

the must-sources there could be a choice if they are con-
flicting or indeterminate. A fortiori this holds for the
two remaining categories of sources. If there is a choice
then some evaluations are operative in making it. The for-
mula of the justified source-decision is:
The rules are used in arguments in justification
according to the mus t-sources MS l' MS 2 ••••• MS n •
and/or should-sources SSl-SS2 ••••• SSp and/or may-
s~urces sC Sl' CS2' ••• C Sn and! or eva ua tions VS l'
V 2.··· V n.
Typical for justification of statutory law decisions
is. that they must refer to statutory rules. i.e. statutes
are the must-sources of decision. It depends. however. on
legal regulation. whether only statutes are must-sources
in this system. and what is the place of other enacted
rules. if any. The source-decisions are needed as supp-
lements to all of the fractional decisions.

15. The final judicial decision disposes of the case. I t

appears. therefore. as the combination of all the frac-
tional decisions presented above.
There are many possibilities of presenting the justi-
fied final decision. I will use the simplest combination
of the justified decisions taking the decision of the
choice of consequences as the starting point.
The standard formula of the justified final decision
is:
The facts of the case F having the characteristics C l •
C2 •••• Cn
which exist in spatio-tempora1 dimensions ST
according to the evidence E l • E2 ••• En and the
empirical rules of evidence ERE I • ERE 2 •••• EREn
and/or the legal
rules of evidence LRE l •••• LRE 2 •••• LREn and/or
e e e
eva1 uat i ons V l' V 2.··· V n.
have the legal consequences LC l-LC2 ••• LC n according to
the applied legal norm N
valid in the legal sys tem LS in spaciotempora1
dimensions ST
according to the rules of reco1nition RR l •
RR2 •••• R~ and/or evaluations vr l • V 2 •••• Vrn
and hav1.ng the meaning M in legal language LL and/ or
the situations
according to the interpretative directives DIll'
 OBJECTIVITY AND RATIONALITY 265

Of 12'.1 •• 011
I' .01
2 l' 01 2 2,···01 2n an d eva 1uat i ons
V l' V 2,··V n
and the directives of the choice of consequences DC l'
DC 2 , ••• DC n and/or evaluations vc 1 , VC 2 , ••• vc n
taKing into account the must-sources MS 1 , M8 2 , ••• M8 3 ,
and/or the sould-sources 88 1 , 88 2 ••• 88n ana/or the
may-sources C8 1 , C8 2 , ••• C 8 3 and/ or evaluations VS 1 '
s s
V 2'···V n·

16. The normal formula of the justification of the final

decision is based on the theoretical analysis of the
justified fractional decisions. All the elements of the
justification are relevant for supporting the decision,
although one can present them in a more detailed manner
than used in the present essay.
The crucial question of the present essay is, whether
this theoretical analysis enables us to construct the the-
oretical paradigm of justification.
The reply depends on the conditions for using the term
"paradigm" in this context. By paradigm we will understand
here the essential features of justification, i.e. the
features without which the decision could not be treated
as a justified decision in the legal culture we are inter-
ested in( 25). Then the normal formula of the justified
final judicial decision can be treated as the basis of
such a theoretical paradigm.
The paradigm in question is, however, more general or
abstract than the normal formula presented above. It is,
thus, less technically formalized, and is centered on the
types of arguments which should be given and not on their
theoretical analysis, which can be changed wi]:hout chang-
ing the paradigm itself. This is the price of constructing
a paradigm, which is characteristic of the legal culture
and not of particular legal theories.
The theoretical paradigm consists of the following
essential conditions of justification: (1) reference to
the applied rules which are taken from the accepted sour-
ces, and are valid in the determined meaning; (2) refe-
rence to the acknowledged facts of the case; (3) use of
the approved of rules of decisional reasoning linking sen-
tences, evaluative statements, and decisions as their con-
clusions.
From the theoretical point of view each element of
this paradigm is a necessary condition of internal justi-
fication of the final judicial decision in the his tori-
266 CHAPTER 3

cally evolved present legal culture in statutory law

systems. This means, that any change of at least one of
these elements amounts to a change in the basic
theoretical insights of judicial decision-making and/or
the accepted notion of justification.
The paradigm of internal justification is a formal
paradigm in the sense that it refers to the necessary ele-
ments of justification without identifying their content.
The identification in question depends on the theoretical
constructs which are problematic and could be related to
the legal regulation and/or to accepted practices of deci-
sion-making.
I leave open the problem of the paradigm of external
justification of judicial decision. There are two ways of
constructing it. The first way is a simple operation of
transforming the internal justification paradigm by sta-
ting, that the decision in question is externally justi-
fied, if the singled out elements of the paradigm and/or
the decision itself are justified according to the opinion
of the critic or of a controlling agency. The second way
describes the same situation by stating, that the elements
in question and/or the decision itself are approved of by
the relevant audience. The first way is a "justificatory
way" leading with the chain of justifications to some
ultimate premisses i t is based on. The second way is an
"explanatory way" explaining the approval of the premisses
of internal justification by the fact or the hypothesis of
a consensus(26).

IV. PRACTICAL PARADIGM OF JUSTIFICATION OF JUDICIAL

DECISION

17. The practical paradigm of justification of judicial

decision, if any, is based on the practice of justifi-
cation accepted in the statutory law systems within our
legal culture.
There are two types of justification of judicial deci-
sions relevant for our argument. Firstly, the law regu-
lates the content of justification when its formulation is
imposed by law; this is the "minimal legal justification
of judicial decision". Secondly, there is a practice of
justifying decisions which determines what arguments are
used in fact; this is "concrete legal justification of
 OBJECTIVITY AND RATIONALITY 267

judicial decision"(27).
I will formulate my observations as hypotheses without
referring to empirical comparative material of legal norms
and decisions.

18. The minimum legal justification of judicial decision

is determined by legal norms dealing with the procedural
requirements of justification(28). Even the most cursory
analysis of the regulation in question shows that the
necessary elements of justification are the so-called
"normative basis of decision" and the "factual basis of
decision" •
The normative basis of decision in minimum legal jus-
tification consists in reference to valid statutory norms
which are applied in the decision.
The factual basis of decision consists of the state-
ments concerning the facts of the case which are admitted
as proved. Sometimes the presentation of reasons for
accepting and rejecting evidence and the selection of
facts influencing the choice of legal consequences deter-
mined in the decision, are required.
Taking this into account one can formulate the prac-
tical paradigm of the minimum legal justification of
judicial decision in the following way: A judicial deci-
sion is justified if it is supported by the normative and
the factual basis of this decision.
The paradigm is a very general one. It seems, that it
cannot be more concrete because of the assumed features of
the paradigm accepted here (point 16). It is patent that a
change of this paradigm is not possible without changing
our culturally bound ideas of justification of judicial
decision which are expressed in legal regulation. This
regulation seems to be correlated wfth the theoretical
paradigm of justification, but is far less elaborated.
The paradigm reflects some relevant features of the
concept of a proper application of law: the application of
law is thought of as justified by valid legal norms
applied to the proved facts. In other words, the decision
ought to be in some manner bound by the law and be based
on judicially determined truth.

19. The "concrete legal justification of judicial deci-

sion" is made in the practice of decision-making(29).
The way of justifying the decision depends, of course,
on the "minimum legal justification of decision". But con-
268 CHAPTER 3

crete justification usually goes beyond these minimum

requirements. It includes elements which are legally not
necessary but are treated as arguments relevant for impro-
ving justification. The variaties of these elements are
expressed in the style of justification of decision.
The style of justification reflects, thus, not only
the requirements of legal norms, but also the theoretical
preyonceptions of the decision-maker anchored in legal
cultural tradition. The styles of justification of judi-
cial decisions are analyzed in comparative legal research
and in the history of judicial decision-making of a coun-
try( 30). The styles are differentiated e.g. in respect to
the variety of used sources, the manner of using interpre-
tative materials, the occurrence of references to the pre-
cedent decisions or to the scientific authorities, the
extent of referring to the factual data concerning the
functional context of decision-making, the expliciteness
of evaluative arguments(31), etc. The styles of decisions
epress the surface structure of concrete justification of
judicial decisions. It seems that there are no reasons for
searching a paradigm of this structure because it is the
variety of styles that is important here for concrete jus-
tification.

20. The deep structure of concrete legal justification of

judicial decisions opens, however, interesting vistas. It
is my hypothesis, that in the deep structure of concrete
justification there is the problem of formulating a rule
of decision that will exactly fit the facts of the case.
In other words, the deep structure consists in trans-
forming the normative basis of decision into the rule of
decision applying it to the factual basis treated as a
settled datum.
The rule of decision(32) can be constructed of: (a)
legal norms understood in their prima facie meaning; (b)
legal norms interpreted in operative interpretation for
the concrete case; (c) legal norms interpreted indepen-
dently of the decided case; (d) principles of law; (e)
extra-legal rules or evaluations. I have discussed the
construction of the rule of decision elsewhere and I
cannot deal with it here in detail. The central idea of
this rule is that the normative basis should be trans-
formed so that it would fit the facts of the case in such
a way that the final judicial decision follows the rule of
decision.
 OBJECI'IVITY AND RATIONALITY 269

It seems that this search for a rule of decision can

be linked with the theoretical paradigm of justification:
the rule of decision would then appear as the combination
of the decisions of validi ty, of interpretation and, in
part, of the choice of consequences in the part containing
the rules of choice of consequences.
If these observations of the deep structure of con-
crete justification are accepted, then the paradigm of
this structure would be the following:
The facts of the case have the consequences Cl '
C2 ••• Cn according to the rule of decision RD.
The final judicial decision is justified by the deci-
sion of evidence and the constructed rule of decision
governing the case.

v. CONCLUDING REMARKS

21. The paradigm of justification of legal decision has

been discussed in reference to a justified judicial deci-
sion, because this type of legal decision is expecially
important in our legal culture. Its importance is based on
the opinion, that judicial decision implements in the
highest socially possible degree such values as legality,
objectivity, certainty,justice under the law etc.
The paradigm of justification of judicial decision is
conceived as the set of conditions essential for its jus-
tification. The paradigm is bound with the determined
legal culture which defines the notion of rationality
expressed in proper justification.
In the present essay the theoretical paradigm of the
justification of judicial decision has been constructed as
the result of an analysis of justified fractional deci-
sions.
The minimum legal justification of judicial decision
is determined by law. In the contemporary statutory law
systems the regulation expresses the basic expectations of
our legal culture, and this opens the way to the practical
paradigm of justification formulated above.
The surface structure of the concrete legal justifi-
cation of judicial decision appears as styles of decision,
and there are no reasons for constructing their paradigm.
It is, however possible to state a paradigm of its deep
structure. It consists in formulating a rule of decision
270 CHAPTER 3

which fits the facts of the case.

The change of a paradigm means by definition a change
in legal culture, expressed in a new theory of judicial
decision, theory of justification and the concept of
rationality inherent in the expectation of justifiability
of the decision. The change of the paradigm of justifying
judicial decision is, thus, linked with profound changes
in the legal culture as a whole. I have attempted to out-
line the paradigms inherent in the legal culture of our
times, which are inherited from the deep rooted traditions
of legal justificatory reasoning.

FOOTNOTES

(1) Cf. J.Wr6blewski, Warto§ci a decyzja s~dowa/Values

and Judicial Decision/, Ossolineum 1973, chapt.III-
IX.
(2) Cf. in general Rationality To-Day. La rationalite
aujourdhui ed. Th.F.Geraets, Ottawa 1979. The
relation of rationality and justifiability is,
however, controversial: cf. A.Peczenik, The Basis of
Legal Justification, Lund 1983, chapt.4; A.Aarnio,
R.Alexy, A. Peczenik, "The Founda tion of Legal
Reasoning", Rechtstheorie 12, 1981, part.II.
(3) J.Wr6blewski, ~eaning and Truth in Judicial Decision,
Helsinki, 1983 , p.49-70. The internal justification
is, in A.Peczenik's terminology, a "contextually suf-
ficient legal justification" whereas the external
justification is either a contextually sufficient or
a "deep justification" depending on the way of justi-
fying the premisses. Cf. A.Peczenik, The Basis, p.1.
(4) Cf.J.Wr6blewski, "Verification and Justification in
the Legal Sciences", Rechtstheorie, Beiheft 1, 1979.
(5) Cf. J.Wr6blewski, S~dowe stosowanie prawa(Judicial
Application of Law), Warszawa 1972, chapt. III.
(6) E.g. N.MacCormick, Legal Reasoning and LegalTheory,
Oxford 1978, chapt. II, III; R.Alexy, Theorie der
juristischen Argumentation, Frankfurt am Main 197~,
part. C; Ch.Perelman, Logique juridique, Paris 1979 ,
part II; G.Struck, Topische Jurisprudenz, Frankfurt
am Main 1971; A.Aarnio, On Legal Reasoning, Turku
1977, chapt. 11/2/; A.Peczenik, The Basis, chapt.2-4;
A.Aarnio, R.Alexy, A.Peczenik, op.cit.;Metatheorie
juristischer Argumentation, ed. W.Krawietz and
 OBJECTIVITY AND RATIONALITY 271

R.A1exy, Berlin 1983.

(7) E.G. Ch.Perelman, I.e champ de l'argumentation,
Bruxelles 1970, p.203; Idem, "Justice and Justifi-
cation", in: Natural Law Forum 10, 1965, p.16.
(8) For the criticiSm of the l'~cole d'exegese cf.
Ch.Perelman, Logique juridique, Paris 1979 2 , part I,
chapt.I; for the criticism of theoretical presup-
positions of the positivistic ideology of the bound
judicial decision cf. J.Wr6blewski,
~adowe •••• chapt.XII/2/ and lit.cit. Especially the
positivist thinking rejects any type of con-
sequentialist argumentation, which appears as a kind
of "second order justification" cf. N.MacCormick,
op.cit.chapt.V; Idem, On Legal Decisions and Their
Consequences: From Dewey to Dworkin, New York Univer-
sity Review 2, 1983.
(9) Cf.J.Wr6blewski, "Legal Syllogism and Rationality of
Judicial Decision-Making" , Rechts theorie 1, 1974;
Idem, S/Jdowe... chapt. Xl8!; M.Taruffo, La
motivazione della sentenza civile, Padova 1975,'"
chapt. IV/1/.
(10) Cf. E. Bulygin, "Time and Validity", Deontic Logic,
Computational Linguistics and Legal Information
Systems, vol.II, ed. A.A.Martino, North-Holland 1982.
(11) Cf.J.Wr6blewski, "Three Concepts of validity of Law",
Tidskrift, utgiven av Juridiska FBreningen i Finland
5-6, 1982 and lit.cit.; Idem,S/Jdowe ••• chapt.X/2/.
(12) J. Wr6blewski, "Fuzziness of Legal Sys tem", Essays in
Legal Theory in Honor of Kaarle Makkonen, XVI
Oikeustiede Jurisprudentia 1983, Vammala 1983, p.319-
322.
(13) Cf. H.L.A.Hart, The Concept of Law, Oxford 1961,
chapt.V/3/vr/1.
(14) J.Wr6blewski, Three concepts ••• p.410.
(15) J.Wr6blewski, "Operative Models and Legal Systems",
Artifical Intelligence and Legal Information Systems,
vol.I. ed. C.Ciampi, Amsterdam 1982, p.220-229.
(16) For the features of the operative legal interpre-
tation accepted in the present essay cf.
J.Wr6blewski, Meaning... p.1-48, 71-103; Idem,
"L'interpretation en droit; Theorie et ideologie",
Archives de philosophie du droit XVII, 1972; Idem,
Zagadnienia teorii wykladni prawa ludowego/problems
of the Theory of Interpretation of the Socialist
Law/Warszawa 1959, passim; Idem, S/Jdowe ••• chapt.VII.
272 CHAPTER 3

(17) Cf. J.Wr6blewski, Fuzziness ••• p.315-319, 322-326.

Idem, "Legal Language and Legal Interpretation"/paper
presented during the symposium "Normative Reasoning
and Legal Interpretation" Turku August 1983.
(18) A very good example of heuristic of legal interpre-
tation is in J.C.Cueto-Rua, Judifical Methods of
Interpretation of the Law, Louisiana 1981.
(19) Cf.J.Wr6blewski, S,dowe ••• chapt.VIII; chapt.X/4-5/;
In the present account I am not discussing the pro-
blems of the relevance of evidence, cf. M.Taruffo,
Studi s~lla rilevanza della prova, Padova 1970.
(20) Cf.J.Wr6blewski, "La preuve juridique; axiologie,
logique et argumentation", La preuve en droit, ed.
Ch.Perelman and B.Foriers, Bruxelles 1981, p.338-354.
M.Taruffo, La motivazione ••• chapt.6; G.A.Micheli and
M.Taruffo, "L'administration de la preuve en droit
judiciaire", Towards Justice with a Human Face, Ghent
1977 •
(21) J.Wr6blewski, Facts in Law, ARSP 2. 1973.
(22) J.Wr6blewski, Meaning ••• p.180-198.
(23) Cf.J.Wr6blewski, S,dowe ••• chapt. IX/1,2/, X/6,7/.
(24) A.Peczenik, The basis ••• chapt.2.2.
(25) About the paradigm in legal science and especially of
legal dogmatics cf. E. Zuleta Puceiro, "Paradigm Dog-
matico y ciencia del derecho", Madrid 1981; idem,
"Scientific Paradigms and Legal Change", /Essays in
Legal Theory ••• ; A.Aarnio, Philosophical Perspectives
in Jurisprudence, Helsinki 1983, chapt. 10.
(26) E.f.A.Aarnio, R.Alexy, A.Peczenik, op.cit., p.437-
444; J. Wr6blewski, "Towards Foundations of Juridical
Reasoning" Metatheorie ••• , p.247-252.
(27) J.Wr6blewski, "Motivation de la d~cision judiciaire"
La motivation des d~cisions de justice, ed. Ch.perel-
man and P.Foriers, Bruxelles 1978, p.122-130.
(28) Cf.note 20.
(29) Cf.M.Taruffo, "La motivazione delle decisioni dei
giudici"(in):Lo statuto dei lavoratori: prassi
sindacali e motivazioni dei giudici ed. T.Treu,
Bologna, 1977; J.Wr6blewski, Meaning ••• p.157-179;
Idem, La motivation ••• p.129 sq.; cf.note 30.
(30) Cf.J.Gillis-Wetter, The Styles of Appellate Judicial
Opinions, Leyden 1960; G.Gorla, Lo stile delle sen-
tenze. Ricerca storico-comparativa e Testi commen-
tati, Roma 1968, 2 vol., Minin, Le style des
jugements, Paris 1962 4 ; K.N.Llewellyn, The Common Law
 OBJECTNITY AND RATIONALITY 273

Tradition. Deciding Appeals, Boston-Toronto 1960.

(31) To an ideology of justification belongs the idea what
arguments should be used for a "proper justifi-
cation", e.g. the role of making evaluations expli-
cit. Cf. e.g. the proposal of "Two-Level Justifi-
cation Procedure", or in R. Wasserstrom, The Judicial
Decision, (Stanford-London 1961, chapt.I) the pro-
posal of "Two-Level Justification Procedure", or
"second-order justification" (N.Mac.Cormick, Legal
Reasoning ••• , chapt.V). The evaluation of conse-
quences of possible decisions can appear, of course,
as an evaluation singled out in each of the formulas
of justifications of decisions given in the text of
the present essay.
(32) J.Wr6blewski, "La r~gle de d€cision dans l'applica-
tion judiciaire du droit', La r~gle de droit, ed.
Ch.Perelman, Bruxelles 1971.