fbevnts How Did the Romans ‘Find’ the Law? A Study on Factual Interpretation

How Did the Romans ‘Find’ the Law? A Study on Factual Interpretation

26.08.2024

Francesco Giglio*

 

How Did the Romans ‘Find’ the Law?

A Study on Factual Interpretation**

 

DOI: 10.26350/18277942_000190

 

Sommario: 1. Introduction. - 2. Theodor Viehweg (1907-1988): A. Viehwegs’ Theory. - B. Some Remarks. - 3. Max Kaser (1906-1997): A. Kaser’s Theory. - B. The Concept of Intuition. - C. Open / Closed Systems and Legal Adjudication. - 4. Franz Horak (1927-2010): A. Horak’s Theory. - B. Some Remarks. - 5. Conclusions.

 

 

1. Introduction

 

In 1962, Max Kaser delivered a paper ‘Zur Methode der römischen Rechtsfindung‘ at the University of Paris[1]. Taken literally, the term ‘finding the law’, or Rechtsfindung, identifies a dynamic procedure through which the agent actively seeks for something which, until its discovery, is unknown. This action includes two lines of investigation: the first one focusses on what is that has to be found; the second one considers the question of where to find it. These two operations, combined together, enable the agent to identify the elements that make it possible for the courts to pass judgment. The word ‘Rechtsfindung’ seems to imply that the judges’ task is to focus on the law. Indeed, they must identify and apply legal norms. Yet the identification of the law – of the relevant legal rules – is only the final passage of an interpretive procedure that has to begin with the examination of the facts. As long as the relevant facts are not ascertained, the door to the second stage, that is, the application of the relevant norm, cannot be unlocked.

The concept of Rechtsfindung, therefore, is more complicated than what might appear at first sight. The phase of finding the law requires the application of a complex mechanism which enables the ascertainment of the appropriate legal rules through the identification of the relevant facts. In turn, this identification process has to be correctly managed: it would be practically impossible to include in the legal analysis all the facts that have contributed to the events for which a rule is sought. Like mathematics, law is a human construct, which means that, again like mathematics, we can – or, at least, should be able to – grasp it in all its aspects. The same cannot be said for the facts: their identification is much more challenging than that of the statutory or judicial rule which will ultimately be applied to them. Further, no two sets of facts can be completely identical. Just as two identical twins are never identical despite sharing almost the same genetic code – and they would not be identical even they did share the same code, given their epigenetic and environmental differences – so two sets of facts which seem identical under closer scrutiny will reveal themselves to be only similar. Unavoidably, it follows that previous similar sets of facts can only provide limited support to any legal argument based upon another set of facts. This irrefutable observation has very practical consequences in any judicial dispute. Given the uniqueness of each set of facts, the parties must convince the court that their own reading of the facts is more appropriate, more convincing, than the other party’s. This is done by matching a selection of the facts to a given legal rule that is considered appropriate for the set of facts at issue. The term ‘selection’ identifies an interpretive mechanism which implies that not all facts will be taken into consideration. A selection is necessary because of our practical impossibility not only to grasp all the facts, but also to include them in the analysis. The process of finding the law, consequently, requires a subjective act of interpretation which has a potentially wide degree of latitude. In this context, by interpretation is meant the mechanism of identification of the subjectively relevant facts and of their connection to a legal rule.

It is submitted that Roman law is very helpful in highlighting the reasoning processes that have been briefly discussed. Indeed, the first reference to the idea of Rechtsfindung is likely to be found in a passage in which Cicero examines the structure of the legal discourse:

Cum omnis ratio diligens disserendi duas habeat artes, unam inveniendi alteram iudicandi, utriusque princeps, ut mihi quidem videtur, Aristoteles fuit. Stoici autem in altera elaboraverunt; iudicandi enim vias diligenter persecuti sunt ea scientia quam διαλεκτικὴν appellant, inveniendi artem quae τοπικὴ dicitur, quae et ad usum potior erat et ordine naturae certe prior, totam reliquerunt[2].

Each careful method of arguing includes two artes, one is discovery, the other judgment. It seems to me that Aristotle was the first to identify them both. And the Stoics worked intensively on the latter: they diligently followed the paths of judgment through the science which they call dialectic. Yet, they completely neglected the expertise of discovery, which is known as topics, and it was both of higher practical use and, certainly, prior in the natural order.

According to Cicero, therefore, Aristotle argued that the legal discourse requires prowess in two skills, which correspond to two parts of the discourse. The ars iudicandi concerns adjudication, that is, the application of a legal norm to the facts. The word ‘dialectic’, linked to it, might mislead the modern scholar. The Stoics, whose philosophy was based upon reason, considered dialectic as a component of logic[3]. Thus, the methodology adopted in the ars iudicandi was based upon logic. The other part is dedicated to the ars inveniendi, where the kind of expertise is required which relates to finding the arguments that lead to the application of the norm, rectius, that persuade the judge that one party’s interpretation of the facts is more convincing than the other party’s interpretation. This work of finding and presenting the most convincing arguments, an essential part of the interpretive task of the lawyer, is known as topical reasoning. As can be seen, the above passage confirms that Cicero was aware of the different components of the legal discourse. He did not expressly distinguish between facts and law, but this distinction is necessarily implicit in his partition.

Cicero’s classification offers an excellent platform for the analysis of three seminal papers on Roman legal methodology. Of course, there are other, important contributions to the debate. Yet, the chosen three use different approaches to this subject which are helpful to the analysis pursued here. Their authors are all German-speaking Romanists: Theodor Viehweg, Max Kaser, and Franz Horak. Their shared cultural background is no coincidence. They were active at a time in which the Germanic Romanists were extremely influential in shaping the discussion on general legal methodology and reasoning. We shall examine the views expressed by these authors in chronological order.

 

2. Theodor Viehweg (1907-1988)

 

Viehweg was a German legal philosopher and socio-legal scientist with an interest in Roman law. In 1953, he published the first edition of a booklet titled Topik und Jurisprudenz[4]. which cast new light on our understanding of the structure of legal systems. Its content triggered an animated debate among legal theorists and Romanists alike.

 

A. Viehwegs’ Theory

 

Viehweg was the first to turn scholarly attention to topical reasoning. He opens his analysis with a contextual discussion of Giambattista Vico’s thought. The choice to start with Vico is unusual and highly stimulating. The vision of this important, and still far too underrated, Neapolitan philosopher and lawyer is key to understanding reasoning in general, and legal reasoning in particular. He was the last of the Italian Humanists and one of the first, if not the first, Italian philosophers to reject Cartesian critical logic, which dominated Europe in the seventeenth and eighteenth centuries, in favour of a dialectical logic that, in his view, better reflected the many facets of the human being. By referring to Vico, Viehweg implicitly made clear that there was much more to legal interpretation than apodeictic syllogisms, that is, deductions based upon a fundamental truth: law as persuasion required the mastery of techniques that could be found in dialectic rather than in axiomatic reasoning. This view tallies with what Cicero tells us on the legal discourse. The Roman orator’s crucial distinction between ars iudicandi and ars inveniendi, the expertise of adjudication and the expertise of discovery, isused by Viehweg to focus on the power of topical reasoning in factual interpretation[5]. In his work, the German author employs Vico’s ideas to clarify the role of topical analysis in the context of Roman legal argumentation[6].

An important pillar of Viehweg’s theory is the distinction between problem-thinking and system-thinking. The concepts of ‘problem’ and ‘system’ can be linked. The problem, that is, a question which apparently allows for more than one solution, can, through an appropriate rewording, be set in a deductive context, Ableitungszusammenhang, which enables the operator to infer an answer. If this deductive context is seen as a ‘system’, it can be said that the problem is incorporated into a system with the aim of finding a solution[7]. When the analysis is based upon topical reasoning, the solution is not system-bound: the same solution can be adopted for multiple systems, be they legal systems such as the Common law and the Civil law, or other logically structured systems. On the other hand, if system-thinking is applied, any solution found would necessarily be only applicable within that chosen system. From Viehweg’s argument it follows that topical reasoning is independent reasoning which can be adapted a-systemically to any context. On the other hand, as the German author acknowledges, topical thinking allows access only to fragmentary insights, fragmentarische Einsichte. For him, this would be the characteristic function of this model of thinking[8].

Viehweg’s analysis throws light on the role and position of topical thinking within legal reasoning. The fragmentary nature of this model of reasoning is not an obstacle to its application in a judicial court, given that it is only limited to the phase of discovery. Once this phase is concluded, the results will be channelled into the phase of adjudication, as Cicero taught us. Topics pertain to the ars inveniendi, they serve the purpose of persuading. When the judge is convinced, or, rather, more convinced, by the argument advanced by one of the parties and, following this conviction, chooses a legal rule, topical reasoning yields to truth-based, id est norm-based, apodeictic reasoning.

Viehweg places topics outside logical deduction, which he confines to the ars iudicandi. He sees topics as ‘an introductory meditation’, eine prologische Meditation, whose role is to find the premisses that logic would then process[9]. Topical reasoning would take place outside deductive thinking, which starts from a primum verum – a non-deductive first statement – from which true statements proceed. Indeed, ‘topics presuppose that such a [deductive] system does not exist’[10]. Because of their close connection to the problem, topics are allowed a very limited role in what is mainly seen as deduction-based reasoning. The German author sees this role primarily in the choice of the principles. The rest of the analytical process would be based upon deduction, which, in the ideal case, makes inventio fully superfluous[11].

 

B. Some Remarks

 

From the viewpoint of legal analysis, Viehweg’s line of argument raises some difficult questions, because it leaves out of the picture the role of dialectic, without which topical reasoning and apodeictic reasoning would never meet because the logical structures required to bring them together would be missing. It is also incompatible with Aristotle’s explanation according to which apodeictic and dialectical reasoning share the same logical platform, the syllogism[12]. whose truth-value depends on the axiomatic or non-axiomatic value of its premisses[13]. Unlike the apodeictic, truth-based syllogism, the dialectical syllogism does not rest on true statements, but only on plausible, persuasive statements: topics. Aristotle describes the orator as the person who looks for what persuades, πιθανν (pithanòn), on any occasion[14].

To provide a practical demonstration of his theory, Viehweg examines a passage of Justinian’s Digest where the classical jurist Salvius Iulianus (ca 110 – ca 170 AD) discusses several scenarios dealing with usucapion, that is, the acquisition of ownership through possession and time[15]. The first scenario concerns the ownership of the child of a stolen slave woman. Julian opens the analysis stating that, in this setting, usucapion is possible not only to the buyer of good faith, bonae fidei emptor, but also to anyone who possesses on a ground that is sufficient to obtain usucapion – as long as the mother became pregnant in the new household and it was not known to the new possessor that she had been stolen. This rule, he tells us, was introduced ratione iuris[16]. Given the wide meaning of the word ratio, this expression is not easy to translate. Neil MacCormick renders it with ‘by legal logic’[17]. The term ‘ratio iuris’ links a given choice to its legal reason; but here it could also indicate an opinion based upon reasonable legal grounds[18], so that for Julian it would be reasonable from a legal perspective to treat the two situations in the same fashion. The justification for this view comes in the following paragraph: the ground for one’s possession cannot be changed by the possessor himself. If the latter is aware not to possess in good faith, he cannot become a good-faith possessor by volition. Julian then provides examples in support of the rule, idque per haec probari posse. One of these examples concerns the position of the person who buys a plot of land from someone whom he knows not to be the owner. This buyer will be a simple possessor, possessor pro possessore. But if he subsequently buys the land from its rightful owner, his possessory title changes, becoming much stronger: he will be possessor as purchaser, possessor pro emptore. This change of legal ground is due to external factors, not to the possessor’s own volition. The same happens if someone buys from a non-owner mistakenly believing him to be the owner. In the third paragraph, the scenario is examined in which the landowner leaves his land in fear when seeing an approaching mob that he presumes to be armed, although this is not the case. The vacated plot of land can be usucapted by a good-faith possessor because the relevant statutes only prohibit usucapion of that land the possession of which was taken by force, not when the possessor appears to be driven out by force. The last scenario in this passage is discussed in the sixth paragraph: should the creditor’s slave steal a pledged thing in his master’s possession, the debtor’s usucapion is not interrupted, because the slave cannot alter the possessory title of his master. The same happens if it is the debtor’s slave who steals the thing: the debtor’s usucapion continues to run.

This source, for Viehweg, offers a clear instance of the methodology of the Roman jurists: the different scenarios in the passage hang together. Yet, the context would not be given by the system, but by the problem itself[19], which here is the change of the possessory title and usucapion. Indeed, there is no denying that the law is developed by Julian from the perspective of a practical problem. Solutions to this problem are advanced on a piecemeal basis, that is, by examining independent but connected sets of facts. The question is whether Viehweg is also right in rejecting a system-based approach. Its answer might not be as straightforward as this author would have it.

Julian offers what he considers a persuasive explanation of his understanding of the law. Whether the reader is persuaded or not, is, from this perspective, not relevant, although, presumably, for Julian it would be desirable. What matters is the intention to persuade and the structure of reasoning through which this result is reached. Such structure shows how Julian thinks: persuasion is obtained through the support offered by like scenarios developed in cases or statutes. The scheme is: scenario A is similar to scenario B, where scenario A is a set of facts already decided or a hypothetical set of facts described in a statute and scenario B is a new set of facts deemed to be sufficiently close to scenario A to warrant the same outcome. Clearly, the mechanism at work here is analogical.

The encounter with analogical structures in law is no surprise to a lawyer. Yet the role of the analogy should be put into the appropriate context of the times. We know that at least some jurists of the late Republic and the Principate were well-aware of the controversy between analogists and anomalists in the Greek world[20].

The ancient Greek grammarians disagreed on how they saw the language. For some, it was order. For others, it was a more flexible tool. These very different visions, unsurprisingly, led to alternative theories. Those who thought that language was order were known as the analogists. They explained the development of language as based upon an analogical process. Those who saw language as growing in a non-orderly fashion were called anomalists. The Roman grammarian of the first century AD Aulus Gellius tells us that the analogy is the similar declension of similar words, whereas the anomaly is inequality of declension which follows from usage[21].

Hence, the analogists, unlike the anomalists, understood that analogy was possible only within a system which supplied the kind of orderly structure that would allow the application of similitude-based reasoning. The substratum upon which the analogy can thrive has to be such as to allow for meaningful comparison. This is the reason why analogical reasoning can take place only within a structured system. A confused, disorderly system would stultify any attempt to reason by analogy. If this is the case, system-thinking and problem-thinking are interconnected and essential parts of legal reasoning. The interconnection and mutual dependence suggest that the distinction put forward by Viehweg is spurious: legal reasoning cannot survive without both system-thinking and problem-thinking.

Consequently, Viehweg’s innovative analysis, which focusses upon the problem and downplays the role of the system, cannot be accepted in its entirety. It is however an important step towards a clearer understanding of how lawyers develop their arguments. Its main weakness is that the discussion of topics is not embedded in an analysis of the connections between system-based and problem-based reasoning. Franz Horak appropriately points out that, if, as Aristotle argues and Viehweg does not deny, topical reasoning is necessary to understand the axioms upon which the sciences rest, it has to follow that topics and topical reasoning are vital and essential to every science. They could not be expunged from the legal system even if the latter were organised in a mathematical structure such as the Leibnizian calculus[22].

An important, and intensely debated[23], source from Julian’s Sole Book on Ambiguities[24] is enough to question the solidity of Viehweg’s certainties. In a long passage, Julian examines situations that could give rise to ambiguity. In the second paragraph, he discusses this contractual term: ‘Do you promise to pay 100 if you will not deliver the slave nor the plot of land?’ The jurists explains that, if this term were inserted into a contract, the stipulation would be invalid if both actions were performed, ‘utrumque est faciendum, ne stipulatio committatur’. Consequently, if neither action, or just one action, were performed the agreement would be valid, ‘id est sive alterum sive neutrum factum sit, tenebit stipulatio’. In the third paragraph, the condition ‘if this or this is not done’, ‘si illud aut illud factum non erit’, is contrasted with a term formulated thus: ‘Should something not have been done of what was included because it should be done’,’ si quid eorum factum non erit, quae ut fierent, comprehensa sunt’. Here, the difference as explained by Julian is that, in the first case, if one of the actions is performed it is true that it is performed. Yet it does not follow that the other has been performed. Going more into detail, Julian tells us that, when the expression ‘if this or this did not happen’, ‘si illud aut illud non fuerit’, is used, the question to be answered for the validity of the contract is whether one of the conditions has not been met. But, if the conditions are linked by ‘and’, the contract will be valid only if both events do not take place. The fourth paragraph contains an examination of the consequences of a negative answer to the question whether the required actions have been done: the answer ‘I did not do it’, non feci, means that neither event has taken place, nihil horum feci. If one of the contractual events should happen, the relevant formula is contained in paragraph five: ‘do you promise to do this or that? Will you pay a given amount if neither event will happen?’ In paragraph six some examples of clear and unclear formulae are described in the context of the law of succession which were a major cause of legal controversies.

The relevance of the source from Julian’s Sole Book on Ambiguities in the context of the instant investigation becomes clear once one considers an important paper on the role that Stoic logic played in Roman legal interpretation in which Juan Miquel demonstrated that Quintus Cervidius Scaevola, a jurist of the second century AD, formulated his argument on the basis of the quadrata formula, the ‘square of oppositions’ first developed by Aristotle which shows the relations between four basic categorical propositions as drawn by Scaevola’s contemporary Apuleius of Madauros, a writer, philosopher and rhetorician – although, for Miquel, Scaevola used Stoic logic whereas the author of The Golden Ass applied Aristotelian logic[25]. As Scaevola, Julian examines different formulations of conditions containing alternative terms and Miquel convincingly applies to his passage the same analysis previously used for Scaevola’s analysis. Miquel concludes that, in both cases, the Roman jurists possessed an expertise in logic and did not start their interpretation from the problem, but from the system, here represented by the quadrata formula, within which the problem was examined[26]. This conclusion triggers the further question whether the Roman jurists, unlike what Viehweg argued, could and did think axiomatically. Miquel’s answer is in the positive: the jurists’ application of the quadrata formula has as a starting point a primum verum, an axiomatic truth from which the reasoning proceeds deductively[27].

 

3. Max Kaser (1906-1997)

 

Max Kaser is rightly considered one of the outstanding Romanists of the twentieth century. He was not a philosopher, nor was he a theorist. Hence, his take on Roman methodology is different from Viehweg’s. Indeed, in his important contribution on ‘The Roman Method of Interpretation’[28] whilst praising Viehweg’s work he acknowledges that his own perspective is not theoretical, but rather purely historical[29]. This notwithstanding, the influence of the German jurist and legal theorist Josef Esser (1910-1999), and of Viehweg’s work itself, emerges in several parts of Kaser’s analysis[30].

 

A. Kaser’s Theory

 

His paper opens with a discussion of the well-known theory according to which methodologically the legal systems can be categorised in two main groups: closed or open. The closed-system model would characterise the Civil law family, whereas the open-system model is associated to the Common law family. The author, however, acknowledges that neither model exists in a pure form: the closed systems are not fully impermeable to legal interpretation based upon case law, whereas statutory law is well developed even in the open systems. On the basis of this partition, Kaser continues, theorists such as Viehweg and Esser have linked the Civil law to axiomatic reasoning and the Common law to topical reasoning although, as Viehweg showed, purely axiomatic reasoning is practically feasible only for systems based upon formal logic, such as mathematics. Hence, systems based upon material logic, materiale Logik, such as law, cannot be fully systematised and are not void of contradictions[31].

The Austrian author insists that topics-based methodology is essential for case-law systems but is also helpful to integrate and develop codified systems. The procedure of topical reasoning is inductive and empirical: its conclusions are evaluated on the basis of their appropriateness, Sachgerechtichkeit. However, finding the law, that is, essentially, interpreting the facts to link them to the law, Rechtsfindung, requires deductive, not inductive analysis. Hence, topical reasoning can only supply the premisses in so far as these are non-deducible. It is then the task of logic to process the inductive premisses[32]. This view is questionable. Dialectical thinking, which is based upon topical reasoning, is syllogistic and therefore based upon a logical structure. A topical inductive analysis can be transformed into a dialectical deductive syllogism which, as pointed out by Aristotle, shares its structure with axiomatic thinking – the only, important, difference between the two being the truth-value of their respective syllogistic conclusions: axiomatic syllogisms are true, whereas dialectical syllogisms use probabilistic reasoning.

In Roman law, Kaser argues, case law was adopted first: the law was made in the tribunals, where the rules applicable to a given set of facts are found. Statutes require a more refined level of sophistication because they abstract from the single case. Roman law was so influenced by its origin that it stuck to case-law even when it attained a higher degree of complexity: Roman law was problem-based[33]. This view, which we have already encountered when discussing Viehweg’s theory, has been called into question by subsequent research on the links between Roman law and Greek philosophy. Thus, Miquel has convincingly proven that Viehweg’s theory of system-thinking and problem-thinking does not take into account the influence of Stoic and Aristotelian system theories upon the Roman upper classes, to which the jurists belonged.

 

B. The Concept of Intuition

 

Kaser’s most original contribution to the debate on legal interpretation is the focus on the concept of ‘intuition’: the rational methods of induction and deduction would not be sufficient to explain the development of Roman law. Rather, what for Kaser was central to Roman law was a spontaneous approach to the analysis of the case which transcends logical analysis. This approach was based upon ‘intuition’, which he describes as the identification of the right decision through immediate comprehension which needs no rational thinking[34].

This role of intuition would be seen with scepticism among the Romanists because psychological reactions would be too unpredictable. They would lack clarity and certainty. Kaser replies to these objections that ‘legal sensibility’, juristisches Sachgefühl, is a psychological requirement that is linked to the need for material justice and a specific legal ethics. Each human being would have either to a different degree. Of both, the Romans would have aplenty. The main reasons for the jurists’ enhanced level of intuition are identified in their ability to grasp the real world, der Sinn der Römer für die Wirklichkeiten des Lebens, that is, their sense for realism; and their traditionalism, their sticking to the ancient customs, mos maiorum, anchored in their rural conservativism. Further, the jurists were a small, elitist group belonging to the upper classes, which allowed them to claim the highest authority[35].

Intuition would steer the search for arguments that enable the jurist to find the right decision. This search is based upon topical, empirical reasoning. Once the appropriate arguments are found, the jurist’s legal sensibility is the means that makes it possible to apply them to the facts. In this applicative phase, the jurist appeals to the suitability, the appropriateness, Sachgerechtigkeit, of the interpretation supported. In so doing, the jurist would highlight the argument’s links to legal ethics. Yet the jurist would also examine the case in comparison with other cases, similar or dissimilar. Even the application of this second method is guided by the jurist’s intuition[36]. The statements and principles developed in this phase never collide. There is an inner systemic order that goes beyond mere empiricism. Kaser calls this order an ‘open system’, offenes System, that he contrasts with the closed, geschlossen, system of codifications[37]. This focus on the value of intuition brings him to conclude that the deductive process that followed the ‘intuitive’ phase was, at best, no more than an unnecessary confirmation[38].

Whereas he acknowledges the new impulses given by Greek philosophy in the second century BC, which stimulated the development of dialectic in law, Kaser thinks that they should not be overestimated, because general legal rules had been identified even before the second century BC. At any rate, this light tendency to theorisation would not be evident in the classical Roman jurisprudence, that is, it lasted only until circa the end of the first century AD.

Kaser downplays the importance of topical reasoning in Roman law as was argued by Viehweg. The jurists might have used inductive reasoning, but there was no thinking based upon general topics. Against Viehweg’s argument, according to which there was one methodological basis that was shared by rhetoric and jurisprudence, Kaser observes that the common elements were not sufficiently developed because of the differences in the respective aims and means. Rhetoric never, or only tangentially, aimed to realise practical justice. This is why, in his view, the rhetoricians never had that intuitive understanding of the law which the Roman jurists mastered[39]. The only texts in which a proper system with legal rules was developed were the institutional textbooks such as the one written by Gaius, who died around 180 AD.

 

C. Open / Closed Systems and Legal Adjudication

 

By his own admission, Kaser seeks to steer clear from theoretical analysis. Yet his own ‘legal sensibility’, to use an expression with which he himself describes the Romans, is so developed that he is able to identify several key-concepts of legal reasoning, although, unsurprisingly, he does not provide a harmonious overview of the process of interpretation, which would require the conception of an overarching theoretical structure.

As mentioned, Kaser’s analysis is grounded in the distinction between closed and open legal systems. The former would be characterised by exclusive legal statements that leave little room to external inputs, as epitomised by the codified Civil law systems of the European continent. The latter would be characterised by the incorporation of solutions arising from individual, practical cases, as exemplified by the Common law systems and, in the antiquity, by Roman law.

Although this systemic categorisation is commonly found in theoretical discussion, Kaser himself refers to Viehweg and Esser, a differentiation of legal systems in open and closed does not seem adequately to reflect what happens in the judicial mechanism of ‘finding the law’. Even Kaser’s own argument about the value of intuition speaks against it. As Cicero has shown, the starting point of the legal discourse is the discovery of persuasive arguments pursued through an analysis of the facts. Such arguments require the engagement of intuitive processes through which the judge evaluates their appropriateness and establishes whether they should lead to the application of given legal norms. At its extremes, the closed/open system theory argues that legal systems can be either impenetrable, that is, closed, or extensively penetrable, that is, open, to extra-systemic perspectives and ideas. Yet, as Kaser’s own view demonstrates, many scholars would acknowledge that, in practice, the systems tend to lean towards one or the other direction finally to place themselves in a more balanced position between the two. Hence, when the legal norms are mainly statutory the system would be closed because it mostly looks inwards. When they are mainly based upon a judicial precedent, the system looks mostly outwards and would therefore be open. What this approach does not consider, however, is that at the centre of both system models there are norms, and that in either system the relevance of these norms for the facts must be argued through persuasive arguments that require intuition, that is, a capacity for imagination that is only modestly dependent on legal knowledge, as trials by jury and lay judges demonstrate. From the perspective of legal reasoning, there are marginal differences between closed and open systems because in both cases intuition leaves a door open to extra-systemic inputs. This is confirmed by the co-existence of axiomatic and topical reasoning in the process conducive to the correct legal decision, as shown by Miquel.

Kaser’s acknowledgment of the central role of intuition is probably his major contribution to the debate. Yet, his concept of intuition is only vaguely explained – and his apparent neglection of Cicero’s very clear scheme only adds to confusion. The reader misses an explanation of questions such as ‘How can intuition, of itself, contribute to legal methodology, if it is not grounded in a logical structure?’ and ‘Why is intuition important, rectius essential, for legal reasoning?’These questions can only be answered if the mechanisms of legal reasoning are brought to light, which Kaser does not do. What is missing in his analysis is contextualisation: Kaser states that he does not want to theorise, but in practice what he does is to provide bits and pieces of a theory without a fully developed accompanying narrative, which, it is suggested, follows from Cicero’s scheme: as the facts can be interpreted only through dialectical reasoning, persuasion is of the essence. The attempt to persuade will be successful if the persuader, the jurist, will be able to depict an image that is intuitively appealing to the judge. Intuition, imagination, persuasion are all concepts which enable the construction of a bridge between facts and law.

Kaser insists that the Romans were successful because they had a higher sensibility and a stronger intuition. However, these requirements are found in any legal interpretive process and were not exclusive to the Roman jurists. Why, then, were the Romans the first to develop a legal structure that has provided the blueprint for all Western legal systems? Possibly not only because they had a stronger innate sense of intuition and imagination, but because they embedded their pragmatic way of thinking, which was the consequence of their cultural and social environment, in a theoretical structure originating in Greek thought of which the jurists, at least the jurists of the late Republic and the early Principate, were conscious. Even if, as Kaser thinks, this deliberate effort to interpret the law on the basis of the newly introduced methodology was limited to a specific period of Roman legal history, this does not imply that the methodology was rejected by the following generations. Conceivably, the application of this methodology became so automatic that its origin lost importance. Modern lawyers do use the theoretical structures described by the Greeks. But how many of them are fully aware of the methodology, let alone of its roots, through which we apply such structures?

 

4. Franz Horak (1927-2010)

 

Franz Horak was an Austrian Romanist and legal theorist. His fundamental study on Rationes decidendi[40], a milestone in the field, is introduced by a methodological analysis of the theory of justification. Although the focus of his reflections only partly overlaps with the one proposed here, his thoughts on this subject provide a fertile terrain for a general discussion on legal reasoning.

 

A. Horak’s Theory

 

Horak sets the ground for his analysis starting with some considerations on the concept of science. In his view, it is not necessary to develop such concept. It is sufficient to identify some features that are generally considered as requisites of scientific reasoning, that is, without which an analysis would not be described as scientific. These central requisites are a systematic order and a context for the legal justification, Begründungszusammenhang: two concepts that are strictly linked[41].

The contextual justification would be a constitutive element of all the formal sciences, such as mathematics and logic, and a necessary condition in the other sciences. Pure description and cataloguing are insufficient: a telephone book is not a work of science. The justification, the presentation of a viewpoint, is what enables the construction of a typology, Typenbildung, upon which theoretical structures can rest that allow the development of general statements – hypotheses, laws, theories – which aim to explain the facts and/or prognosticate further facts[42]. As emerges from Cicero’s analysis of the ratio diligens disserendi, or careful method of arguing, the establishment of a link which brings together theory and facts is essential for legal reasoning too – although this point is not explicitly made by Horak.

Horak acknowledges the modern shift in the meaning of ‘axiom’: whereas in the past this concept identified statements that do not need proof or are unable to be proven because they are self-explanatory, today axioms are seen as first premisses that, through convention, are established for a given system[43]. From the perspective adopted here, this change of focus is of limited significance. ‘Self-explanatory’ and ‘conventional’ are concepts which imply an original, persuasive and dialectical – and therefore logical – argument on the basis of which an axiom is accepted as self-evident or conventional.

Just as Viehweg does, Horak thinks that, contrary to a common view, the construction of a system in which all principles depend upon an original axiom and do not clash with one another is only a theoretical possibility that is not established even in mathematics and logic: they, too, are in reality a composite formed by subsystems, Teilsysteme[44].

Law does not belong to the formal sciences, but to the Realwissenschaften, that is, the sciences that are based upon empirical or factual experiences. In this context, a ‘general system’, Gesamtsystem, would be thinkable only for a given moment in time, because the experience upon which the system is developed changes constantly. This would be the only difference of principle between this group of sciences and the formal sciences: natural, social and human sciences require a systematic structure just as much as the other sciences. An implication of this view is that axiomatic-deductive systems are also available in those sciences that are based upon empirical and factual analysis, but only as subsystems with a limited expansion. It follows from this line of argument that, given the practical impossibility of a completely systematic science, only these compounds of subsystems enable logical reasoning in this field. As Horak puts it, a general system may be impracticable, but this does not mean that subsystems are impossible[45]. It should also follow that, because of the ever-changing experience upon which a system is based, the legal rule has to be found – through Rechtsfindung – afresh every time. This is an important consequence that Horak does not explicitly state, given that his focus is on the mechanism of justification, not on the ars inveniendi. From the viewpoint of the instant analysis, however, the time-sensitivity of each legal system suggests that past rules always require interpretation for them to be applied to new sets of facts.

The line of thought just presented begs a question which Horak does not address: why is law a science based upon empirical and factual experience, and not a formal science? The answer depends on what is understood by ‘law’. We need to go back to Cicero and his exposition of the legal discourse in light of Aristotelian philosophy. Horak states: ‘Law is not a formal science’. Yet, from the perspective of the ars iudicandi, law is a formal science: a legal system, or, if one prefers, a complex of subsystems, is a purely theoretical, human-made construct just as a mathematical system. From this perspective, it presents the same characteristics of formality as mathematical systems. This closeness between legal and mathematical systems is confirmed by Viehweg, according to whom any legal system can theoretically be transformed into a purely formal, mathematical system through the application of Leibniz’s calculus – although in practice serious obstacles might hinder this transformation. If this is correct, why is law regarded as a Realwissenschaft, whereas mathematics is labelled as a Formalwissenschaft? This question is all the more pressing if one considers Viehweg’s argument according to which topical thinking is an introductory meditation, eine prologische Meditation: that is, a passage that so to speak belongs only to antechamber of the logical process through which a legal decision is taken. If this were the case, should law not be seen as a formal science?

Horak’s interest goes to the justification of legal decisions. The process of justification, he explains, requires a logical deduction of statements from other statements – with the exception of axiomatic statements, which are non-deducible. Within a subsystem, all statements deriving from other statements must be proven. Crucially, this procedure does not imply that the conclusions deduced must be shown to be true. Even probability has a place in science. In this latter case, the discussion turns to the higher or lower level of probability concerning a given statement. Horak distinguishes science as an outcome, ‘Wissenschaft als Ergebnis’ from science as the process of production of this outcome, ‘Produktionsprozeß dieses Ergebnisses’[46]. What matters to him is the knowledge acquired, the outcome, not the process through which such knowledge is acquired. In other words, his attention goes to the context of justification, not to the context of discovery. The latter becomes relevant within an analysis of the process of production of the outcome: the question of the way in which the Romans found the law can only be considered if the focus is kept on the process of discovery. The concept of science as outcome plays a limited role in this context. A-posteriori justifications of judicial decisions offer an inadequate perspective to understand the noetic mechanisms through which legal decisions are reached by the courts, that is, how the judges find the law. From this perspective, Horak is correct in highlighting a widespread mistake according to which intuition, which is neglected in the phase of discovery, would be relevant, indeed necessary, in the phase of justification[47]. The wrong classification of intuition within the process conducive to the legal decision leads to a lack of understanding of the intellectual processes at play. Using Horak’s example of the telephone directory, the directory does not involve a scientific methodology because it does not require intuition, but only a methodology.

It is intuition that steers legal decision-making. It accounts for any new development, change of course, extension or restriction of a doctrine, but also for any legal judgment, however small or routinely decided. Yet, intuition does not and cannot justify a legal decision a posteriori because it is based upon feelings that, usually, at the time of the justification are not the same as when the decision was taken, so that the justification is unlikely fully to capture them. Justification necessitates a logical analysis, which, in law, is attained through a connection between apodeictic and dialectical deduction. To use Horak’s argumentation, logical deduction – as Aristotle had already said – is not only truth-based: it is also based upon probability and is available in the human and social sciences as well.

 

B. Some Remarks

 

Horak’s thoughts on the systematic nature of the law provide some background knowledge to the legal noetic processes. He argues that the law cannot get on without some form of systematic structure[48] and accepts that law works within a logical context of norms as ‘Sollsätze’, that is, should-statements. If the meaning of ‘norm’, he states, is restricted to the provisions of a positive legal order, then the legal norms of a codified legal system are axioms: they are free from contradictions, compatible, and cannot be deduced from one another. On the other hand, if one includes in the concept of norm anything that derives from the rules of positive law, then the legal system, and its logical structure, is much more extended[49]. The possible contradictions within the system can be explained by linking each contradiction to a different subsystem.

The reference to contradictory statements leads us to the role of analogical reasoning in law, through which general principles are associated to legal norms. Horak observes that analogy-based judgments do not exclude contradictory conclusions and, at best, produce only probability results, Wahrscheinlichkeitsergebnisse, which put the courts under pressure to clarify them through difficult jumps into what is seen as merely outward certainty. The question whether such norms obtained through induction from general principles have the character of positive, although not explicit norms is dismissed by Horak as just an apparent problem, Scheinproblem: proper norms, should-statements and imperatives, cannot be probable – just as much as a thing cannot be probable. They are or they are not. It would be different if these general principles were deduced from areas that transcend positive law, such as natural law, and pre-positive elements of the legal order, such as the nature of the thing. They would be elements of a system which is above positive law, überpositiv, and of which the positive norms were part[50].

Horak’s argues that probability results do not satisfy the demands of proper scientific reasoning: they do not exclude contradictory outcomes. This view can be countered by observing that it is correct to say that probability results are just an apparent problem, yet not, as Horak maintains, because they do not reach the required scientific standard, but because they take place in the phase of discovery, not in the phase of adjudication. Probability ‘results’ are persuasive cognitive processes, not rules. The – legal – rules are activated in consequence of a probability analysis. When the outcomes of the process of production of the norms are ‘found’ – in other words, when the facts are interpreted in the light of the legal system and the court is convinced that a given norm or set of norms matches the facts – the ars inveniendi has concluded its task and the decision mechanism moves forward to the ars iudicandi, where the legal axioms are applied. Lawyers are human beings and, necessarily, their thoughts are influenced by the world around them. In considering the facts, they will have to be persuaded that their answer to a societal problem is the best possible under the circumstances. Inevitably, lawyers will be affected to a degree by their environment, which includes cultural, social, moral and many other considerations. Such environmental influence happens with or without their being conscious of the presence of non-systemic thoughts in their mental process because this influence is part of us being human. How is the law supposed to evolve if no extra-systemic considerations are allowed in? Where are we supposed to draw the line? Probability reasoning enables the judge to identify, possibly to create the applicable rule. From this perspective, Horak is right: a rule cannot be probable just as a material thing cannot be probable. This is why his theory cannot be fully accepted: to use his own terminology, he confuses the scientific outcome with the scientific production of the outcome - Wissenschaft als Ergebnis’ and ‘Produktionsprozeß dieses Ergebnisses’.

In conformity with a German current of thought, Horak distinguishes statutory law from case law. A larger use of the latter would characterise the common law and Roman law, where conclusions based upon analogical reasoning have the highest and widest level of application. In such systems the question ‘what is the applicable law?’ would be often answered with ‘what has a prospect to be concretised in the judgment by the judge’[51]. This answer would not be seen as a satisfactory, keine befriedigende Antwort, in European-continental legal thinking. Horak’s view of the Common law is quite popular amongst the jurists of Civil law but it is often shared by common lawyers as well. Yet it is arguably based upon a fundamental misconception: that analogical reasoning is only relevant when there are gaps in the law. This description of the role of the analogy raises the impression that it is a useful tool, but of limited usage.

The generally accepted view according to which analogical reasoning is relevant only in cases of gaps in the law should be rejected. If it is recognised that there cannot be identical sets of facts and - what is not contentious – that the discovery part of the legal discourse includes a process of selection of those factual elements that are considered relevant to support the parties’ argumentations, the only possible inference is that analogies must be used in any legal analysis, because, as Horak appropriately pointed out, law is a Realwissenschaft based upon empirical or factual experiences. As such, any legal system is ever-changing. In other words, from the perspective of legal interpretation, Rechtsfindung, each legal system is unstable, because any statement formulated within it has an extremely short life, after which the statement has to be validated anew. Therefore, legal reasoning is by necessity always analogical reasoning – independently of a perceived difference between judicial and statutory norms.

Back to Horak, in fairness it should be added that he accepts that the true picture is not as neat as he depicts it: judicial precedents, for example, contain binding rules. And a case-law system would not be able to survive without some kind of structure provided by general norms. However, he clearly sees case law and codified law – which largely overlap with the divide in open and closed systems – as opposite, albeit not necessarily contradictory sources, which allows them to get closer and even cross the respective boundaries in given areas[52].

Horak does not disagree with Viehweg’s view on the application of the Leibnizian calculus as an extremely challenging and only theoretically possible avenue to make law fully logical. He acknowledges that a detailed analysis of the issue concerning axiomatisation and systematisation in law would go well beyond the confines of his investigation. However, he points out that the language of the law is too vague and ambiguous to be a symbol-language[53]. This is not only correct: it is also an unescapable consequence of the nature of the legal institutions, which is linked to the ever-evolving nature of law as a social science, although this is not how Horak justifies the imprecision of the legal language. In a constantly changing social environment, the law can only keep up by being flexible. A conversion of a legal system to a symbolical system is theoretically feasible[54]. However, the result of this operation would be a formal, frozen system which has nothing to do with the law in action. It provides a postcard that only seizes a moment in time and very soon acquires historical significance.

Horak provides a helpful examination of the context of justification. He is interested in understanding the processes that come about in the phase after a judge has taken a decision. One could say that he focuses on the ‘exteriority’: what the judge presents as the justification for a given decision. The focus of the present investigation, on the other hand, is an attempt to understand how the Romans found the law. From this perspective, the justification as the outcome of the scientific effort is irrelevant. What matters is the logical structures, the mental processes that take place in the phase before a decision is taken, rectius, the decisional procedures that lead to a given outcome: rather than the rule, the methods of identification and interpretation of that rule. It is argued that these methods are strictly linked to intuition and analogy.

 

5. Conclusions

 

Roman law provides an excellent starting point for any analysis of legal reasoning and the way in which lawyers, then and now, find the law. The concept of Rechtsfindung shows itself as much less clear a notion than it might appear at first sight. Cicero’s exposition of the theory behind the legal discourse has been insufficiently explored by legal theorists for quite a long time – possibly because of the lack of adequate communication between them and legal historians. The three theoretical positions examined in this paper go some way to fill this gap but have weaknesses of their own which do not enable the reader to see the full picture.

Viehweg’s main contribution from the perspective considered here is the reference to the work of Giambattista Vico, which allows him to shift the focus to dialectical reasoning and, implicitly, the role of facts. His distinction between system-thinking and problem-thinking misses the point that these two systems are not antagonists, as he describes them, but rather co-protagonists benefitting from a mutual collaboration. Further, his exclusion of topical analysis from logical deduction has as a consequence the fragmentation of the legal discourse into independent, partly incoherent elements: the resulting model is unable convincingly to explain the mechanisms at play in the mechanism of finding the law.

Kaser was correct in identifying intuition as the central engine of legal interpretation. Less convincing is his application of topical reasoning to the partition in closed and open systems. In his view, topical reasoning would only be a requirement of reasoning concerning case law, whereas the interpretation of statutes might benefit from topical analysis, which however would not be as central as for case law. How Kaser justifies this line of thought is not clear: in both cases, the interpretation has to move from the facts, ars inveniendi, to the law, ars iudicandi, and to do so the jurist must find the relevant arguments, which is possible only through topical thinking. Further, given his mainly historical perspective, which does not leave much room to theoretical reflections, Kaser’s analysis is too fragmentary and consequently no clear picture emerges. For example, whereas he approves of the partition in open and closed systems, upon which he bases his theory, he admits that the boundaries of this distinction are blurry, and that, in fact, in its purest form this classification has only theoretical significance. As has been argued above, in the context of legal adjudication this categorisation is of little or no help in understanding the model of reasoning at play in legal interpretation.

The same criticism can be levelled at Horak’s study when this author distinguishes case law from statutory law: as regards legal reasoning, both case and statutory law use the same methodological structures. On the other hand, Horak was focussing upon the context of justification, which is not relevant in the instant analysis.

Horak contends that law is a science based upon empirical and factual experiences. This statement is very important to understand how legal reasoning works. It implies that a legal system can remain identical to itself only for a very brief moment in time because the facts upon which it rests are always different, so that a judgment based upon apparently identical facts can provide no more than a persuasive argument for the adoption of the same rationale in another judgment. However, Horak’s statement is at odds with his claim that judgments based upon probability results are inadequate legal tools because through them the courts would only achieve apparent certainties. If the legal system is ever-changing, it necessarily follows that each judgment must be seen as only supplying a given level of probability to other judgments, for the reason that it concerns a set of facts that are ever so slightly different from any other sets of facts.

In this paper, it has been argued that the safest avenue to avoid the weaknesses which have been highlighted in the analyses of the three different approaches examined is to go back to Cicero’s explanation of the legal discourse. The Republican orator and lawyer had clearly understood the mechanisms in operation and his partition in artes inveniendi and iudicandi offers a simple and coherent map to navigate the structures of legal reasoning.

 

 

Abstract: A seminal presentation held by Max Kaser at Paris University in 1962 is taken as the starting point of an analysis of factual interpretation in legal adjudication. Despite not being a theorist, Kaser, it is argued, was able to identify the relevance of intuition in the judicial debate through which the parties seek to convince the judge. The question identified in the title of this paper is discussed on the basis of a critical examination of three of the greatest scholars of their generation: Theodor Vieweg, Kaser himself and Franz Horak. All three contribute, in different fashion, to an understanding of the process of ‘finding the law’, or Rechtsfindung. This concept is here considered from the perspective of Cicero’s partition of the legal discourse in ars inveniendi and ars iudicandi, which is tied to the Aristotelian analysis of syllogistic reasoning.

 

Keywords: Factual adjudication, legal reasoning, ars inveniendi / iudicandi, Aristotelian syllogism, intuition, open/closed systems, Roman law


* University of Surrey (F.giglio@surrey.ac.uk).

** Il contributo è stato sottoposto a double blind peer review.

*** This paper is part of a project with the title ‘Law as Philosophy’.

[1] M. Kaser, Zur Methode der römischen Rechtsfindung, Nachrichten der Akademie der Wissenschaften zu Gottingen, I., Philologisch-historische Klasse Jahrgang 1962 Nr. 2, pp. 47 ss.

[2] Cicero, Topica §6. For the original text, I used T. Reinhardt (ed and trans), Cicero’s Topica, Oxford, 2006. When nothing else is specified, all translations are mine.

[3] Cf A.A. Long and D.N. Sedley, The Hellenistic Philosophers vol 1, Cambridge, 1987, 18th reprint 2012, pp. 183-190. See the differences between Aristotelian and Stoic philosophy in R. Brouwer, ‘On Law and Equity: the Stoic View’ in 128 (2011) Zeitschrift der Savigny Stiftung für Rechtsgeschichte (hereafter ZSS), rom Abt, pp. 17ss.

[4] T. Viehweg, Topik und Jurisprudenz 5th edn, München, 1974.

[5] Ibid. pp. 26-27.

[6] Ibid. p.18.

[7] Ibid. pp. 32-33: ‘Das Problem wird durch entsprechende Umformulierung in einen vorgegebenen mehr oder weniger expliziten und mehr oder weniger umfänglichen Ableitungszusammenhang gebracht, aus welchem die Antwort erschlossen wird. Nennt man einen Ableitungszusammenhang ein System, könnte man … sagen, daß das Problem zum Zwecke der Lösung in ein System eingeordnet wird.’

[8] Ibid. pp. 34-35.

[9] Ibid. pp. 39-40.

[10] T. Viehweg, Topik und Jurisprudenz, cit., p. 44: ‘Die Topik setzt voraus, daß ein solches System nicht besteht.’

[11] Ibid.

[12] Aristotle, Posterior Analytics I, 2; 71b 14-24. I used W.D. Ross, ed., Aristotle’s Posterior Analytics, Oxford, 1964.

[13] Aristotle, Topics. I used E.S. Forster, Topica, Loeb Classical Library, Harvard, 1960.

[14] Ibid. VI 12, 149b25: ‘τοιοῦτοςδ᾿ὁτοῦῥήτοροςκαὶὁτοῦκλέπτουὅρος, εἴπερἐστὶῥήτωρμὲνὁδυνάμενοςτὸἐνἑκάστῳπιθανὸνθεωρεῖνκαὶμηδὲνπαραλείπειν’.

[15] Iulianus D.41.3.33 32 ad Sabinum. The passage is quite long, and the Latin text will be omitted.

[16] Ibid: ‘idque ratione iuris introductum arbitror.’

[17] See the translation by N. MacCormick, in A. Watson, ed, The Digest of Justinian, Pennsylvania, 1985) D.41.3.33.

[18] C.T. Lewis and C. Short, A Latin Dictionary, Oxford, 1879 s.v. ratio II 2 B 2 (β) c.

[19] T. Viehweg, Topik und Jurisprudenz cit., p. 48.

[20] The very influential jurist Marcus Antistius Labeo was particularly praised for his knowledge of grammar and dialectic by Aulus Gellius, Noctes Atticae XIII 10 1. I used J.C. Rolfe (trans) Attic Nights Vol I Bks I-V, Loeb Classical Library, vol 195, Harvard, 1937.

[21] Ibid II 25: Ἀναλογία est similium similis declinatio, quam quidam Latine "proportionem" vocant. Ἀνωμαλία est inaequalitas declinationum consuetudinem sequens.’

[22] F. Horak, Rationes decidendi. Entscheidungsbegründungen bei den älteren römischen Juristen bis Labeo vol 1, Innsbruck, 1969, p. 50.

[23] Cf J. Miquel, Stoische Logik und römische Jurisprudenz, 87 (1970) ZSS pp. 85-122, pp.104-107.

[24] Iulianus D.34.5.13 (14) 2-6 Libro singulari de ambiguitatibus: 2. Cum ita stipulationem concipimus: "Si hominem aut fundum non dederis, centum dari spondes?" Utrumque est faciendum, ne stipulatio committatur, id est sive alterum sive neutrum factum sit, tenebit stipulatio. Idemque est evidenter, cum propositis specialiter pluribus rebus, quas fieri volumus, ita stipulamur: "si quid eorum factum non erit": veluti " Stichum et Damam et Erotem sisti? si quis eorum non steterit, decem dari?" Necesse est enim omnes esse sistendos, ut stipulationi satisfiat. Vel ut propius accedamus, fingamus ita stipulationem factam: "Si Stichum et Damam et Erotem non sisteris, decem dari?" Neque enim dubitabimus, quin aeque omnes sisti oporteat.

3. Utrum ita concipias stipulationem "si illud aut illud factum non erit" an hoc modo "si quid eorum factum non erit, quae ut fierent, comprehensa sunt", hoc interest, quod, quamvis altero facto verum sit hoc aut illud vere factum esse, non ideo tamen verum erit hoc aut illud factum non esse. Nam simul ea possunt esse vera, quamvis inter se contraria sunt, quia cum significatio non ex universo, sed ex aliquo sumitur, si veri aliquid inde sit, veram efficit totam orationem: sicut e contrario duae orationes pugnantia continentes simul falsae sunt, veluti si qui liberorum partim puberes, partim impuberes decesserint, nam et hoc falsum erit omnes impuberes decessisse et illud omnes puberes decessisse. Id accidit, quia significatio sumitur ex universo, in quo si aliquid falsum est, totam orationem falsam efficit. Animadvertendum igitur est, quid sit, de quo quaeritur. Nam cum ita concipio "si illud aut illud non fuerit", quaeri debet, an aliquid factum non sit: illius effectus hic est, ut neutrum fiat, huius autem, ut utrumque fiat: nec in illo prodest aliquid non fecisse, si aliquid factum sit, neque in hoc aliquid fecisse, si aliquid factum non sit.

4. Proinde si quis ita interroget: "Eorum quid, quae obiciuntur tibi, fecisti?" Ille neget, hoc exprimat: "Eorum quid, quae obiciuntur, non feci", id est "nihil horum feci".

5. Si quis autem plura in stipulatum deducat, quorum unum fieri velit, ita comprehendere debet: "Illud aut illud fieri spondes? si nihil eorum factum erit, tantum dabis?"

6. Item si pater familias in testamento ita scripserit: "Si quis mihi filius aut filia genitur, heres mihi esto: "si mihi filius aut filia heres non erit, Seius heres esto", non satis voluntatem suam declaravit, si non aliter extraneum heredem esse volet, quam si neque filius neque filia heres sit: hoc enim modo concipi oportet: "si mihi neque filius neque filia heres erit". Potest autem interdum superior scriptura esse necessaria, si quis, cum filium et filiam habeat, utrumque heredem instituere velit, sed sive alter heres futurus sit, extraneum miscere, sive neuter, extraneum substituere. Sed proclivior est sententia testatoris sic esse interpretanda, ut, sive filius sive filia nati ei fuerint, extraneus non admittatur, nisi specialiter hoc testator expresserit.

[25] J. Miquel, Stoische Logik, cit., pp. 101-103.

[26] Ibid. pp. 107-118.

[27] Ibid. pp. 118-119.

[28] M. Kaser, Methode, cit. On the basis of the arguments presented above, the term ‘Rechtsfindung’ is here paraphrased rather than metaphrased.

[29] Ibid pp. 50.

[30] J. Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts, Tübingen, 1956. Esser’s other fundamental contribution to legal theory, Vorverständnis und Methodenwahl in der Rechtsfindung, Frankfurt a. M., 1970, was published after Kaser’s paper.

[31] M. Kaser, Methode, cit., p. 51.

[32] Ibid. p. 53.

[33] Ibid. p. 54.

[34] Ibid. p. 55: ‘die Gewinnung der richtigen Entscheidung durch ein unmittelbares Erfassen, das des positiven Argumentierens nicht bedarf.’

[35] Ibid. p. 56-57.

[36] Ibid. p. 59.

[37] Ibid. p. 66.

[38] Ibid. p. 68.

[39] Ibid. p. 67.

[40] F. Horak, Rationes decidendi, cit.

[41] Ibid. p. 10.

[42] Ibid. p. 11.

[43] Ibid. p. 12 n 11.

[44] Ibid. p. 13: ‘Aber nicht nur Logik und Mathematik als Gesamtdisziplinen, sondern auch die logischen und mathematischen „Systeme” einer bestimmten Epoche, ja eines bestimmten Wissenschaftlers bestehen in Wahrheit aus Teilsystemen, die entweder nebeneinander bestehen oder im Verlauf der geistigen Entwicklung eines Forschers aufeinanderfolgen’.

[45] Ibid. p. 14-15.

[46] Ibid. p. 17. The words are in italics in the original text.

[47] Ibid.: ‘[S]o wie die Intuition im Entdeckungszusammenhang übersehen oder unterbewertet wird, so wird sie umgekehrt im Begründungszusammenhang zu Unrecht als wertvoll oder gar unentbehrlich angesehen.’

[48] Ibid. p. 26: ‘Daß auch die Jurisprudenz nicht ohne jedes System auskommt, wird – wenigstens stillschweigend – allgemein anerkannt.’

[49] Ibid. pp. 28-29 ‘Damit erhält das ganze Recht die logische Struktur eines Systems von größter Reichhaltigkeit’.

[50] Ibid pp. 30-31.

[51] Ibid. p. 32: ‘was Aussicht hat, vom Richter in seinem Spruch konkretisiert zu werden’.

[52] Ibid. p. 33: ‘Case law und codified law, ,,offenes" und „geschlossenes" System sind nur konträre, nicht aber kontradiktorische Gegensätze, mit allen Möglichkeiten der Annäherung und des Übergangs’.

[53] Ibid. p. 41: ‘Die […] Ungenauigkeit (Vagheit und Mehrdeutigkeit) der Sprache macht es auch der Jurisprudenz unmöglich, einen höheren Grad der Exaktheit zu erreichen, wie er etwa bei weitgehendem Gebrauch einer Symbolsprache möglich wäre.’

[54] As shown by T. Viehweg, Topik und Jurisprudenz, cit., § 7, ‘Topik und Axiomatik’, pp. 81-94.

Giglio Francesco



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