Abstract. Legal doctrine in Continental European law (scientia iuris) consists of professional legal writings, e.g.

, handbooks, monographs, etc., whose task is to systematize 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. Defeasibility 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 interpret valid law.
* The author is grateful to Svein Eng, Wlodek Rabinowicz, and David Reidhav for valuable comments.

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, 10910)

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 negligently 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 ``adequate.'' Consider the following example: A negligent coachman falls asleep. The horse takes the wrong turning. The coach is struck by lightning, 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 casebut not in the formervon 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 ``adequacy'' 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 wellinformed 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. 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 negligent 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 something 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 frequencywhat most people do in a certain context is not negligentor on a rather complex network of expectations. 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-andeconomics 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 ``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 preparatoires, the purpose of the statutes, judicial practice, administrative practice, custom, works in legal doctrine, and so called ``real considerations.'' 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 ``authority 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 precedents andin some countrieslegislative preparatory materials as authority 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 important 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 facade, concealing the fact that x comes before yunless 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 is historical and philosophical 4; 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 standpoints, 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, ultimately

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 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, 3235; 2000, 23940, 24850). 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 allmathematics. Not only do there exist particles no one ever can see. There also exist mathematical calculi that made it possible to theorize about the particles.

A nave 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, whatever 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 foundations, 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, whatever 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 foundation 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 preferences 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 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 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 nonrational. 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)

Hagerstrom's philosophy was more complex, but he, too, vehemently denied the possibility of rational theorizing in morality, as opposed to theorizing about morality.9 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 thatin factcan 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 supertheory. In a similar way, branches of natural science are coherent with basic physics. But in fact, juristic doctrines show a kind of neutrality vis-a -vis basic theories of practical reason and morality. Disputes between 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 etrangere, 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 contingent 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 normative, 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 convincing. However, the sceptics face some unsolved problems. Firstly, the

philosophical foundations of such scepticism are controversial. Value- and 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, 203, 4750, 10813; Hage and Peczenik 2000b). Moreover, the Humean criticism is general, not restricted to the law. Whoever employs Hume to criticise the juristic doctrines, is committed to being equally critical to all normative moral theory. For Hagerstrom, 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 component. A legal philosopher, meanwhile, tells him that this use is objectionable. This gap may easily cause professional frustration, leading to a retardation of legal doctrine. A great American Legal Realist thus concluded with resignation: ``A 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 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 justification 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 applicable 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 (``easy'' 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 ``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 defeasible, 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 interpretation, 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 linguistic. 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 reasonwhich is behind all lawhas 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) 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 lawand thus societyas 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 circumstances. 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 mayjust mayappear differently than to us.We simply cannot know. What we know is about neutrinos, etc., not about the metaphysical 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 supervenes 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)

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 construction 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 [_] 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 definition that which corresponds to the legal part of this theory. (Peczenik and Hage 2000, 3412)

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 motivations 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-andnormative 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 prepared 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, 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 interpretation 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. Ormore 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, andat the same timethey 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). By the way, the view that Humean psychology is insufficient to grasp motivation displays an interesting similarity to Leon Petraz ycki's views. Petrazycki 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 passiveactive nature and term them impulsions. (Petraz ycki 1955, 223)

Petrazycki 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 theorywhich regards hunger as a negative feelingat once ignores the active side of the phenomenon and confuses the passive experience which is experienced in hunger appetite [_] with the phenomena which may accompany hunger but are not essential thereto. (Petraz ycki 1955, 23)

According to Petrazycki, there exist, inter alia, ethical impulsions (or ``emotions,'' the Russian word is ``emotsya''), 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 normative factswe 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 intuitive legal experiences or intuitive law. (Petraz ycki 1955, 567)

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. (Petraz ycki 1955, 43)

However, though undoubtedly a genius, Petraz ycki 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 Petraz ycki'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 legislationcumjudicial practice is. If one equates ``the law'' with legislation-cumjudicial practice, the conclusion must be that legal doctrine changes the law. However, if one conceives the law as inherentlyand rationally 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-cumjudicial 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 statement-supported by the weighing of moral argumentsbe 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 cognitivist as regards prima facie norm- and value-statements, and, at the same time, non-cognitivist as regards all-things-considered norm- and valuestatements. 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 allthingsconsidered 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 respectively) 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 valuestatements. 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 moral-cum-legal practice, we take the knowledge relative to them as objective knowledge about the world. Thus, dependence of judgments on concepts 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 ``I think that,'' ``in 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. The conclusion must be that the juristic doctrines are valuable ``islands'' 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, 1921) 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, 5824, and, e.g., 3615). 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 ``uralter Rechtssatz, nicht erst romisch'' (Liebs 1986, 32). Another example: The maxim pacta sunt 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,'' ``ownership,'' 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 recognition), (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 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 itselfcontrary to the legal-positivistic claim to separation of law and moralswere 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 itselfabout which the doctrines have some truth to tellbe thus separated? To put it sharply: Is not the existence of legal doctrines fragmented and local as they area 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 moralityas opposed to the social and hence local character of the lawis 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 nonuniversal content in morality. Some communitarian components are present also in theories proclaiming themselves as, e.g., contractarian. Thus, Scanlon's background assumptionleading to contractarianismis 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 communitarianism. 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)

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 ``anti-positivistically'') linked to morality, the relative locality and fragmentation 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, ontological 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 inescapably 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 philosophyeven a risky oneshowing 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 philosophyor a cluster of philosophiesof 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 ``I 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 philosopher opts for a philosophical theorysometimes 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 interpretations 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 Wroblewski (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 philosophical positions fit another fragment. The jurist often does not care about it, and works in a manner he intuitively finds reasonable. In this manner, legal doctrine implicitly moves back and forth between different epistemological positions (foundationalismcoherentismscepticism), and between different (onto)logical positions (logical atomismholism).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 theoreticalmostly philosophical reasons 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 consequences 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 philosophy 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 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 doctrine 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 ``in 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 justification of legal doctrine. In my opinion the core of legal theory is a philosophical 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 doctrines 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 disciplines. 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 narrowminded. 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