Jan Sieckmann

Rechtsphilosophie ist nicht nur Reflexion uber Recht, sondern auch notwendiges Instrument zur Losung juristischer Probleme. Jan-Reinard Sieckmann erortert in seiner hier vorgelegten Rechtsphilosophie juristische Probleme, deren Behandlung rechtsphilosophische Uberlegungen erfordert. Auf der Grundlage der Idee individueller Autonomie analysiert er Grundkonflikte des Rechts mit Gerechtigkeit oder Moral, zwischen verschiedenen Rechtssystemen und einzelnen Rechtsnormen, und insbesondere Grundrechten. Des Weiteren entwickelt er die Methode autonomer Abwagung als Ansatz zur rationalen Losung solcher Konflikte und untersucht, inwiefern Autonomie, Menschenwurde, Menschenrechte, Grundrechte oder die Prinzipien von Gleichheit und Gerechtigkeit als abwagungsfeste Fundamente des Rechts angesehen werden konnen.

How can normative claims be rationally justified if one cannot refer to a given moral world, and any norm established by social practice can be called into question? The only foundation of normative claims seems to be the judgements of the norm addressees themselves. But how can norm addressees be bound by norms that they themselves establish? This is the puzzle of autonomy as self-legislation. It also concerns the normative claim of law, which, moreover, pretends to be authoritative and, thus, seems to exclude individual autonomy. Hence, the problem regarding law is not only to justify its normative claim, but also to construct its authoritative claim on the basis of the idea of autonomy as self-legislation.

Balancing as optimisation seems to be the most rational approach regarding conflicting normative arguments. However, it is not generally accepted, and various other accounts of balancing have been suggested. Alternative accounts of balancing are, in particular, Alexy’s “weight formula”, the idea of satisficing, a theory of prioritisation by ranking instead of optimisation, and a method of specification instead of proportionalism. In addition, the approach of constructive interpretation may be regarded as an alternative account of balancing.

The model of legal systems with ultimate power within their jurisdiction is challenged by the emergence of a plurality of legal systems, which all claim authority on their own and apply to the same legal cases, for example, national constitutional systems, the European Union, and the system of the European Convention on Human Rights. This development threatens the idea that law could resolve conflicts in a normatively justified way and not by mere political power. The issue, hence, is how the emergence of legal pluralism can be accommodated in a normative theory of law, normative in the sense that law constitutes a justified system of norms.

The balancing of normative arguments aims at determining a priority between the conflicting arguments according to their weight in the particular case. The weight of normative arguments in the particular case depends, on the one hand, on the abstract relative weight of the arguments and, on the other, on the degree of fulfilment or non-fulfilment (interference) of the competing demands that follows from the suggested priority relation. This structure is defined by the model of balancing as optimisation. However, a contested issue is which role epistemic assessments have to play in this balancing.

Reasoning with conflicting normative demands takes the form of balancing. Balancing consists in determining a priority amongst conflicting arguments according to their weight. In law, such arguments are usually called “principles” in the sense of norms that can conflict with each other and figure as reasons for a particular result of the balancing of the competing principles. This core idea of balancing has, however, diverse interpretations. In particular, the conception of autonomous balancing contrasts with that of balancing as interpretation and that of balancing as calculation.

‘O’:the deontic operator ‘ought to’‘VALDEF’:a predicate ‘... is definitively valid’‘VALARG’:a predicate: ‘... is valid as a normative argument’‘N’:a term denoting a particular norm (a norm individual) ‘n’: a term denoting a variable for norms‘∣— (VALDEF, N)’:statement that a norm N is definitively valid‘∣’:assertion-sign, indicating that the following sentence is used to make a statement or an assertion‘—’:"Gedankenstrich", indicating that the following sentences presents a proposition‘...’:argument-sign, indicating that the norm presents a normative argument, which the speaker is ready to support by normative arguments of ever-higher order‘¬’:negation ‘not...’‘->’:conditional ‘if..., then...’‘ ’:biconditional ‘if and only if..., then...’‘&’:conjunction ‘... and...’PRIOR(R/¬R)C,P1,P2 :priority of consequence R against non-R under condition C regarding conflict between principles P1 and P2R/C:if C then RVALDEF,X(R/C):definitive validity of R/C regarding procedure X.

In the model of autonomous reasoning, balancing is the characteristic form of normative argumentation. However, in legal argumentation, it seems complimentary, whilst the usual method is that of interpretation within a syllogistic structure of subsumption and deduction. The issue of legal argumentation is to identify a legally valid norm and then interpret and apply it to a particular case. One starts with a statement of the legal norm to be applied. The interpretation aims not at establishing the definitive validity of a norm, but at the explication of the meaning of a norm. In contrast, balancing presupposes a conflict of normative demands, and the issue is to determine which norm is definitively valid regarding this conflict in the circumstances of the particular case. Balancing is required only when the definitive validity of a norm is contested. This might be the case, for example, for reasons of constitutional law in the balancing of fundamental rights, but also in the frame of interpretation, where different interpretive arguments compete.

Law as a normative systems requires justification through autonomous reasoning. There seems to be no other way to ground the normative claim of law. Normative validity implies that a norm ought to be recognised, applied, and followed by its addressees. Legal norms, claiming normative validity, hence imply an obligation at least of the law-applying organs to recognise, apply and follow these norms. This obligation can hold only if there is a justification for it, and this justification must be founded on autonomous morality. That is, one must show that every autonomous agent must accept as correct the claim that the respective norm is valid. The normative validity of law hence depends on autonomous morality. However, law is not identical with morality. It is defined also by its authoritative character. The interplay of authoritative character and autonomous justification manifests in three dimensions of law: law as a system of positive norms, as a normative system, and as a practice.

Normative competences are a crucial feature of law, but also of autonomy as self-legislation. A normative competence implies the capability to change the normative situation because of an intentional act directed to this change. Competence norms confer such a power to an agent, depending on certain conditions. Legal competences confer the power to change the legal situation. Autonomous morality includes the competence to present normative arguments, thus making them valid as arguments, as well as the competence to form normative judgements based on the balancing of normative arguments. A characteristic of normative competences is that the intention to determine the normative situation is the reason for recognising a certain norm as valid. Hence, they present a specific type of normative position of the competence holder.

The term “fundamental rights” is ambiguous and needs clarification. Fundamental rights must have a special status against positive law, which makes their recognition in some sense necessary and independent from positive legislation. Their validity does not follow from mere positive enactment, but they present requirements to be recognised by positive law. Hence, they are normatively justified by moral arguments, particularly by human rights principles. This implies that positive law cannot dispose of their validity. They must be recognised in positive law as in principle legally valid. Positive law might restrict them, but such restrictions need justification. In particular, such restrictions must be proportionate.

Law as a normative system must include human rights principles and the principle of proportionality. Human rights principles follow from the demands of autonomous agents to respect their fundamental interests. The principle of proportionality requires a correct balancing of competing normative arguments. Recognition of these principles hence presents a minimal requirement of the protection of human rights or fundamental rights. In this view, rights are connected with interests, that is, with demands of autonomous agents of what they want to be realised or protected. Rights serve or protect interests. The derivation of rights from interest-based demands suggests that the structure of balancing corresponds to that of balancing individual interests. This assumption, however, is not beyond doubt. The doubt results from the fear that a balancing of a right with other interests might give too little protection to the right. This, however, does not put in doubt balancing and proportionality as minimal requirements for the protection of fundamental rights, which does not exclude stronger forms of human rights protection.

This essay explores the idea of moral autonomy as self-legislation and presents the model of autonomous reasoning as an account of the rational justification of normative judgements. Autonomy is defined as the balancing of competing normative arguments, all of which are valid and applicable in a situation of conflict. Normative arguments are understood as demands presented and balanced by autonomous agents. Normative judgements resulting from the balancing of normative arguments propose certain norms as definitively valid; that is, as norms that ought to be accepted as the result of the balancing and, hence, ought to be applied and followed. They ascribe normative validity as an expression of autonomous choice, which is, on the one hand, free, but, on the other hand, must be presented as required by the prevailing argument.

The normativity of law must be founded on autonomous reasoning. Hence, a crucial issue of a theory of law as a normative system is the relevance of moral argument for legal validity. No specific interpretation of morality is implied here. Moral validity is understood as normativity in the sense that the validity of a norm implies a requirement that it be applied and followed. Hence, the issue is how this requirement can be justified regarding law in the model of autonomous reasoning. In this approach, a conceptually necessary connection between law and morality follows because legal validity implies an obligation to apply and follow it, at least for law-applying organs. It is a demand of practical rationality that a justification is presented for such a normative claim. Hence, legal validity requires a moral justification.

The account of autonomy and law defended here is founded on the notion of autonomy as the balancing of normative arguments. It is distinct from common accounts of normative reasoning and of law in various respects. Its core elements are normative arguments, the normative competence of autonomous agents to present such arguments, normative judgements as the result of balancing, criteria of rational balancing and the demand of intersubjective reflection, and objective validity grounded on reasonable convergence. Furthermore, it includes formal principles as the foundation of the authoritative character of law, and the notion of rights that are in principle immune against balancing.

The distinction between normative arguments and normative judgements or statements has been developed as a reconstruction of Dworkin’s thesis that rules and principles are logically distinct types of norms. His approach that principles are reasons to be balanced against competing principles, whilst rules are applied in an all-or-nothing fashion, links a normtheoretical feature to a specific method of application. However, whether such a distinction is tenable is a matter of dispute. The most prominent attempt to present a structural distinction of rules and principles is Alexy’s account of principles as requirements of optimisation, in contrast to rules as definitive norms or as norms with a special prima facie character. However, Alexy’s approach is contested, and indeed it does not explain how principles can figure as reasons for balancing judgements. The prevailing opinion seems to be that there is no structural difference between rules and principles, but, if at all, only a gradual one.

This book defends the idea of autonomy as the balancing of normative arguments, which captures the essential feature of autonomous judgement as being simultaneously free and normatively bound. However, this approach runs counter to the dominant view of arguments as propositions, and to Kantian notions of autonomy. Here, it is applied to three core dimensions of law: law as legal system, as legal practice, and as normative judgement, leading to specific views of legal validity, legal interpretation, and the necessary content of law in the form of human rights principles. Lastly, the autonomous reasoning perspective is applied to conflicts of law with morality and with competing legal systems.

This paper analyses the logical structure of the balancing of conflicting normative arguments, and asks whether non-monotonic logic is adequate to represent this type of legal or practical reasoning. Norm conflicts are often regarded as a field of application for non-monotonic logics. This paper argues, however, that the balancing of normative arguments consists of an act of judgement, not a logical inference, and that models of deductive as well as of defeasible reasoning do not give an adequate account of its structure. Moreover, it argues that as far as the argumentation consists in logical inferences, deductive logic suffices for reconstructing the argumentation from the internal point of view of someone making normative judgements.

Kelsen rejects the scientific character of natural-law doctrine. For Kelsen, value judgments are ultimately not rationally justified but a matter of emotions. They can be rationally justified only relative to a certain moral or legal order. Kelsen also rejects the assumption of natural-law doctrines that value is immanent in reality. On the other hand, he suggests that legal science is possible regarding positive law, which is converted into a normative order by presupposing a “basic norm”. I will not challenge Kelsen’s critique of traditional natural-law doctrine, but discuss two issues: Can Kelsen’s own account of the “Pure Theory of Law” claim to be scientific, and does Kelsen’s critique of traditional natural-law theories affect modern versions of normative theories of law?As to the first issue, according to Kelsen, legal science is possible because it refers to positive law, which one can identify by empirical means. However, Kelsen is not content with a purely descriptive approach to law, but wants to show how legal science is possible as a science of norms. In this respect, the “basic norm” is crucial. This chapter questions whether the mere presupposition of a basic norm is sufficient to establish the scientific character of legal doctrine.As to the second issue, quite a number of theories have been advanced that purport to show how scientific, or at least rational, treatment of normative issues is possible without the dubious assumptions of traditional natural-law doctrines. I will discuss in particular Gustav Radbruch’s “methodological trialism” and the discourse theory of law as presented by Robert Alexy. From this discussion, I will then proceed to address the further question of the continued relevance of Kelsen’s critique of natural-law doctrine for legal science.

Proportionality is the standard that guides the balancing of human or fundamental rights in law, requiring that the interference with rights must be justified by reasons that keep a reasonable relation with the intensity of the interference. One may well regard the principle of proportionality as a universal standard of rationality, which any legal system must recognise. Thus, when applied to human rights, proportionality presents a universal human rights principle. However, the thesis of the universal validity of the principle of proportionality faces various objections. I will refute these objections. First, I will distinguish diverse meanings of the universal character of principles and argue that the principle of proportionality is in a certain sense universally valid. In the second part, I will analyse the content of the principle of proportionality as part of a general framework of balancing and suggest a general scheme for examining the justification of the interference with a fundamental right according to the standard of proportionality.