Abstract. Legal doctrine in Continental European law (scientia iuris) consists of professionallegal writings, e.g., handbooks, monographs, etc., whose task is to systematizeand interpret valid law. By production of general and defeasible theories, legaldoctrine aims to present the law as a coherent net of principles, rules, meta-rules, andexceptions, at different levels of abstraction, connected by support relations. Theargumentation used to achieve coherence involves not only description and logic butalso evaluative (normative) steps. However, sceptics criticise juristic doctrine for itsnormative character, ontological obscurity, vagueness, fragmentation, and locality.The author answers this criticism pointing out the following. Normative reason ispossible. Liberal ontology, admitting such entities as morally justified law, is possibleas well. The vagueness of legal doctrine can be construed as defeasibility. Defeasibilityis inevitable in the law and in human thinking in general. Fragmentation oflegal 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 inother states.

1. IntroductionThis is a paper about legal doctrine, and it is also a paper in legal theory. Itspurpose is twofold: To justify legal doctrine, and thus to show that legaltheory can be useful.

2. Legal DoctrineLet me start with some facts about legal doctrine. Legal doctrine inContinental 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 interpretvalid law.* The author is grateful to Svein Eng, Wlodek Rabinowicz, and David Reidhav for valuablecomments.

The work of legal doctrine is almost always value-laden. Legal doctrine isa good example of a practice of argumentation, pursuing knowledge of theexisting law, yet in many cases leading to a change in the law (Peczenik1995, 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 attaintheir practical ends, law and legal science can make use of logical instrumentswithout becoming scientific discourses by so doing, but rather making such logicalinstruments contribute to the practical preceptive function of law. (Pattaro 1997,109±10)Among general theories of legal doctrine, in brief ``juristic doctrines,'' onemay 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 TortsFor a long time, one has been liable in torts in many legal orders for negligentlycausing damage. Yet, a German legal scholar J. von Kries inventedabout 1880 a theory, according to which one is not liable when causationwas not ``adequate.'' Consider the following example: A negligent coachmanfalls 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 thepassenger's death, but the cause is not adequate. It would, however, beadequate in another case, for instance, when the chain of causation fromfalling asleep to the passenger's death does not involve lightning but adriving into the ditch instead. In the latter caseÐbut not in the formerÐvonKries points out that we are dealing with a generalizable causation. The

negligence of the coachman was generally apt to bring about such anaccident, 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 isadequate if, and only if, any action of this kind is apt to bring about (orrelevantly increases the probability of) damage of this type. The causalconnection between an action and damage is adequate if, and only if, theaction makes damage of this type foreseeable for a very cautious and wellinformedperson (a cautious expert, a vir optimus). The causal connectionbetween an action and damage is adequate if, and only if, the action is anot too remote cause of the damage. The causal connection between anaction 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 ofadequacy, promoting acceptable decision-making. But each one, althoughreasonable, is contestable. Moreover, the question how often varioustheories imply a different evaluation of adequacy in concrete cases is noteasy to answer. Apparently, we face here a problem: If the theories differ intheir normative consequences, legal doctrine acts as a kind of lawmaker. Ifthey do not differ, what is their competition good for?

Theories of NegligenceNegligence is an important precondition of liability and responsibility invast areas of the law, not the least torts, contracts, and criminal law. Sincetime immemorial, the jurists proposed several principles, maxims, andtheories aiming at drawing a demarcation line between what one is, andwhat one is not liable for. In part, the demarcation is based on negligence,though there also exists strict liability without negligence, and negligencewithout liability, for example, in the case of non-adequate results of negligentacts, see above. Yet, what is negligence? In its essence, negligence is amental attitude for which one is blamed. For example, one knew that one'saction may have brought about the harm but one still did not care, or onedid not know it but should have known. The classical standard has somethingto do with normality: One is blamed for carelessness because a normalperson, a bonus pater familias would take more precautions. The estimate ofnormality in its turn is either based on frequencyÐwhat most people do in acertain context is not negligentÐor on a rather complex network of expectations.The latter is difficult to analyse, yet it makes sense to say that oneacted negligently even though many other people in one's position actsimilarly. For example, an organizer of fashionable but extremely risky``canyoning'' tours in the Alps may be found negligent in spite of the factthat other organizers of such things do more or less the same as he did. Thestandard of normality has its tricky history that cannot be discussed here.An interesting thing is, however, that, in recent times, it has come underattack from two different sides, namely from Richard Posner's law-andeconomicsmovement, and from welfare-state politics. Thus, one can befound liable in torts for negligence in spite of the fact that what one did wasquite normal. According to the economic theory, the defendant's conductshall be judged according to whether it promotes economic efficiency(``Learned Hand's Formula''). According to the social security theory, thedefendant shall be found negligent, if the burden of accidents is therebyshifted from single individuals and spread over a large population (``theDeep Pocket Theory''). The new theories are related to the old one in avery unclear manner. It has been argued that each is proper for a different

kind of case (cf. Dahlman 2000, passim). However, this solution opens thequestion 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 weneed it for?

Theories of the Sources of the LawOne 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, travauxpreÂparatoires, the purpose of the statutes, judicial practice, administrativepractice, 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 Norwegianprivate law. The present author has attempted to formulate the underlyingstructure of this theory. In his view, the sources of the law are ``authorityreasons.''2 This excludes Eckhoff's ``real considerations'' from the list of thesources. 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 EuropeanContinent, the following can be said. All courts and authorities must useapplicable statutes. When performing legal reasoning, one should use precedentsandÐin some countriesÐlegislative preparatory materials as authorityreasons, if any are applicable. When performing legal reasoning, one mayuse, inter alia, the writings in legal doctrine and foreign law.A comparison of this theory with Eckhoff's reveals the following importantdifference. Eckhoff's theory is an enumeration of arguments used inlegal reasoning. Programmatically, it is extremely cautious in establishingany priority order between the sources. The present author's theory, on theother hand, does establish a defeasible priority order. For example, statutes gobefore 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 defeasiblepriority orders? Are they not a mere facËade, concealing the fact that x comesbefore yÐunless they are not?

The Point of Legal Doctrine: CoherenceLegal doctrine regards the law as man-made, and historically changing. Atthe 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 philosophical4; it integrates exegetical and systematicelements (Savigny 1993, 35). Savigny's key observation was this:I state that the essence of the systematic method lies in the knowledge and expositionof the internal connection or affinity linking single legal concepts and legal rules inone great unit. To start with, these affinities are often concealed and their discoverysubsequently enriches our knowledge. (Savigny 1840, xxxvi)5

By means of the production of general and defeasible theories, legal doctrineaims at obtaining a coherent picture of the law. It aims at presenting the lawas a network of principles, rules, meta-rules, and exceptions, at differentlevels of abstraction, connected by support relations. The argumentationused in order to achieve coherence involves not only description and logicbut 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. Thechoice of approach in legal doctrine is also based on normative standpoints,even if the chosen approach itself claims to be ``value-free,'' forinstance, evaluations are necessary to opt for the law-and-economics

approach. The evaluative reasoning steps are justifiable by reasons, ultimatelyby moral reasons. Thus, the system of law as it is presented in legaldoctrine should not only be internally coherent, but should also beharmonized 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 atthe law schools. I do not discuss here other kinds. In particular, I do not dealwith research in sociology of law. Neither do I deal with various kinds ofcritical research, such as Marxist jurisprudence, critical legal studies,feminist approaches to the law, and so on. This paper deals only withdescriptive-and-normative legal doctrines that aim at coherence of the law.Second, jurists make a distinction between a cognitive inquiry into thelaw as it is (de lege lata) and justified recommendations for the lawgiver(de lege ferenda). But as every legal scholar knows, the distinction is difficultto consistently apply in the practice of legal research. De lege lata and de legeferenda are rather ideal types of legal argumentation, not categoricallyopposite kinds of such argumentation. One way to define these ideal typesis this. Both research de lege lata and research de lege ferenda aim at producingcoherent 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 enactedlaw is relatively greater in the research de lege lata than in the research de legeferenda.Svein Eng claims that lawyers' propositions about what is the law,lawyers' propositions de lege lata, are characterized by the fact that theyalmost always are neither purely descriptive nor purely normative; insteadthey have a fused descriptive and normative modality (Eng 1998, 310ff.;2000). I agree fully with Eng's observation. Of course, it does not follow thateach legal doctrine is solely composed of such ``fused'' statements (Eng 1998,314, 323±5; 2000, 239±40, 248±50). A legal doctrine often contains a lot ofstraightforward descriptive statements, for example, about the wording ofa statute, and often also some straightforward normative statements, forexample, recommendations addressed to the courts. But each such doctrine,qua legal doctrine, i.e., qua a doctrine containing propositions about whatis the law, almost invariably contains fused normative-and-descriptivestatements.

3. Coherence ElsewhereLegal doctrine gives us a coherent picture of law. Isn't it similar in thisrespect to all science? Science is coherent because it describes an orderlyworld.Indeed, the world appears to be in order. Not only do I wake up in thesame bedroom each morning. Not only are there many bow-wow beastsneatly arranged into a kind called dogs. Whatever happens belongs to a kindof events. More than that, physicists tell us that there are deeper regularitiesunderlying what we see and hear. There exist atoms. And it does not endhere. Everything is made up of a limited number of kinds of elementaryparticles. Everything follows physical laws. In other words, everythingbelongs to a kind, and repeats itself. Unique singularities are at a margin ofour 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 quantumphysics, but again, who cares except a few specialists. The all-pervadingorder is even more wonderful than that. Physicists tell us such thingsbecause they have mastered the biggest wonder of allÐmathematics. Not

only do there exist particles no one ever can see. There also exist mathematicalcalculi that made it possible to theorize about the particles.A naõÈve realist can ask the question, where does all this exist? Particles doexist in space and time, though they tell us that space can be curved, andtime is relative. Mathematical objects exist in a conceptual space only, whateverthis phrase can mean. A problem? Who cares? Everything is ordered.At least, our knowledge is ordered. And it tells us what is the case. Wepossess a wonderful conceptual scheme capable of showing us a neatly arranged world. A few philosophers ask whether this conceptually orderedworld corresponds to a reality as it is in itself. But such philosophers are fewindeed, and the question is perhaps meaningless. Whatever we can sayabout reality as it is outside of our conceptual scheme, we must say withinthe very scheme. We cannot talk without concepts. Or, brutally said, wecannot talk without talking.In brief, by using reason, we see the world as orderly. We see it as acoherent whole. Thus, coherence is a well-known criterion of truth. Forgood 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 notcertain. The main competitor of it is coherentism. Roughly speaking, whateveris justifiable is justifiable on the basis of the background system ofbeliefs and preferences.6

I assume here a coherentist position (cf. Peczenik 1998a; 1998b). I grantthat such a position is not unproblematic. The most profound problem ofcoherentist justification is its circularity. If nothing is an unshakable foundationof knowledge, and everything may be doubted, I need reasons forreasons for reasons _ etc. To avoid an infinite regress, a coherentist mustaccept circularity. Indeed, a coherent system of acceptances and preferencesis 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 asa reasonable support: p2 follows from p1 together with another premise,say r1. This premise r1 is reasonable, which implies that it is a member ofanother 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 morerobust, less vulnerable to destruction [_] To put it metaphorically: nets are safer thanchains. (Rabinowicz 1998, 18ff.)Now, if I want to argue that I am justified in believing or preferring x, I mustappeal to my system of beliefs and preferences at that time. And if a skepticwants to convince me that I am wrong, the appeal to my system of beliefsand preferences at that time is again all he can make (Lehrer 1990, 176ff.).This idea of coherence leads to epistemic conservatism. WlodekRabinowicz puts it as follows:Suppose we discover that our system of beliefs is internally incoherent; or supposewe 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 bepreferred 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 asmaller modification of the original beliefs to a larger one simply becauseex ante these are our beliefs; rejecting them would mean rejecting what weex ante consider to be true.

This philosophy may appear to be too conservative. However, it is not. Ittells us nothing at all about how big modifications will be necessary toadjust the belief system to new data. This depends solely on how extensivethe input of new data is. Moreover, the principle of minimal change may beadjusted so that it will allow us to prefer a bigger modification of the beliefsystem to a smaller one, if we hope that the thus modified system willexplain more data than we expect to gather in future. In such a case, a biggermodification of the present belief system is reasonable because it leads to asmaller modification of the expected future belief system. Scientists oftenexpect that a more coherent theory will thus explain more future data than aless 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 dasGanze.''

4. Objections to the Coherence of Legal DoctrinesLawyers, too, try to live in an ordered world. They construct theories ofnegligence, adequate causation, and what not. The theories show us orderbehind seemingly chaotic legislation, and judicial practice. Dozens of trickyparagraphs can be summarized as consequences of a few principles that fiteach 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 thelegal world suffers from four deficiencies: ontological obscurity, vagueness,fragmentation, and locality. No wonder legal sceptics treat theories ofjuristic doctrine as rhetorical devices, at best making people happy, and atworst deceiving them.The Alleged Irrationality of Normative TheoriesThe normative content of juristic doctrines is sufficient for various valuesceptics and rule sceptics to declare such theories as par excellence nonrational.In other words, such sceptics simply assume that there is no suchthing as a normative reason. In this context, let me note that, if the scepticswere right about the non-existence of normative reason, their criticismwould hit all normative disciplines, not only legal doctrine. For example,there would be no rational normative moral theory. This consequence wasderived by, among others, David Hume.8

Hume's position resulted from his empiricism. Let me just quote thefamous fragment:Take any action allow'd to be vicious: Wilful murder, for instance. Examine it in alllights, 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 canfind it, till you turn your reflection into your own breast, and find a sentiment ofdisapprobation, 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. (Hume1985, 520)HaÈgerstroÈm's philosophy was more complex, but he, too, vehementlydenied the possibility of rational theorizing in morality, as opposed totheorizing about morality.9

Ontological ObscurityAnother big objection to legal doctrines is that it is often unclear as toprecisely what it is dealing with. Surely, an author of a sophisticated andcoherent study about negligence or adequate causation in the law aims atsomething more than a simple description of such facts as the plain meaningof 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 atworst of sheer corruption, since these details are nevertheless binding andthus affecting the basis of such doctrines, the doctrines are open to thefollowing objection. How can jurists give us a neatly ordered and coherentpicture of the law thatÐin factÐcan be chaotic and incoherent? A jurist whodevelops a coherent doctrine must answer that he does not simply describeeither the statutes, or the decisions. Rather, he wants to reveal somethingmore profound, underlying the statutes and decisions. But what? Not theactual opinions of politicians, judges, or the public, since these are obviouslyneither sophisticated nor coherent. Opinions are fluid and pluralist, legaldoctrine is coherent and stable. It cannot be about opinions. It is, then, aboutwhat? In other words, whereas neat calculi in natural science apparentlyreveal the order in the world itself, neat juristic doctrines cannot reveal suchan order, since there is none.VaguenessAnother problem for juristic doctrine is that it is excessively vague, so vaguethat precise normative consequences do not follow from it. For example, thetheory of legal sources cannot tell us precisely when established judicialpractice takes priority over the wording of the statute. Neither can thenormality theory about negligence tell us anything precise about whatcounts as normal. Nor can the foreseeability theory about adequatecausation tell us what an expert would foresee as a too tricky accident.10

FragmentationIn a neat world, juristic doctrines would be coherent with a single supertheory.In a similar way, branches of natural science are coherent with basicphysics. But in fact, juristic doctrines show a kind of neutrality vis-aÁ -visbasic theories of practical reason and morality. Disputes between utilitarians, rights theorists, particularists, and other moral philosophersaffect them little, if at all. This fact creates a problem as to the profoundfoundation of the normative force of juristic doctrines.11

LocalityMoreover, juristic doctrines are made in respective national legal systems.For example, the German theory of adequate causation in torts is not at allsimilar to the Anglo-American theory of proximate cause. Neither is itsimilar to the French theory of cause eÂtrangeÁre, though all three theoriesperform a similar function in the respective legal systems. In this sense,juristic doctrines are essentially positivistic. Their content is affected notonly by principles with a claim to universal validity but also by the contingentcontent of a particular legal system. How can this content benormatively binding? And in what sense of ``normativity''? Is there anynormativity that is peculiarly legal, not moral? In what sense, then?Such questions inspire a plethora of legal positivist theories. Regardlessof the current fashion in legal theory, let me express here a deep mistrustof such theories. They are on a mission impossible. A legal theorist, oftena political liberal, wants to restrict normativity to universal principles noreasonable person would reject. At the same time, he must admit that thelaw 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. Hewants to eat the cake, and yet to have it intact. No wonder he prefers LegalPositivism. And no wonder his positivist theories inevitably evolve towardsincreased sophistication, and decreased informational content.12

The ChallengeThis situation is a challenge. To understand juristic doctrines, a theoristmust argue that they are justifiable despite their normativity, ontological

obscurity, vagueness, fragmentation, and locality.

5. The Normativity of Juristic DoctrinesFor many lawyers, value- and even norm-scepticism sounds quite convincing.However, the sceptics face some unsolved problems. Firstly, thephilosophical foundations of such scepticism are controversial. Value- and norm-sceptics doubt, refute, or at least radically revise many concepts usedin 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 ofpsychological state. On the one hand there are beliefs, states that purportto 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 beliefsin that they do not even purport to represent the way the world is (Smith1994, 7). This Humean psychology is the psychological equivalent of thelogical gap between Is and Ought. Just as the Is and the Ought are assumedto be (onto)logically independent, belief and motivation are assumed to belogically independent. However, this belief-desire psychology is highlycontroversial in moral theory (McNaughton 1988, 20±3, 47±50, 108±13;Hage and Peczenik 2000b). Moreover, the Humean criticism is general, notrestricted to the law. Whoever employs Hume to criticise the juristic doctrines,is committed to being equally critical to all normative moral theory.For HaÈgerstroÈm, the basis of the criticism of moral and legal concepts isanother concept, the concept of reality, as solely composed of facts extant intime and space. From the analysis of this concept, the so-called ScandinavianLegal Realists derive their criticism of fundamental concepts of morality andlaw. 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 thatregards valid law as a product of fantasy creates an unbridgeable gapbetween ordinary beliefs of the lawyers, and legal philosophy. A lawyer hasto 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 aretardation of legal doctrine. A great American Legal Realist thus concludedwith resignation: ``A right man cannot be a man and feel himself a tricksteror a charlatan'' (Llewellyn 1960, 4).13

The conclusion must be that the existence of normative components ofjuristic doctrines is no compelling objection to such doctrines. Surely, thedoctrines are open to philosophical criticism. But the very same criticism isalso open to philosophical criticism. A jurist is well advised to take suchcriticism with equanimity, and to get on with producing his doctrines untilsomeone really proves them wrong.

6. Vagueness and Defeasibility in Legal DoctrineLet me now deal with the vagueness of legal doctrine. I will argue thatvague formulations often signal that the juristic doctrine in question is defeasible. Vagueness is a matter of language, defeasibility in the law isoften a matter of morality.14 Moreover, defeasibility makes legal systemsmorally acceptable. Whoever eliminates defeasibility from the law, mustend up with a law open to moral criticism. No wonder, legal doctrines aredefeasible.The key analytical invention, making it possible to reconcile the justificationof 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 aconclusion obtains, the conclusion must also obtain. But only some, not alldecisive reasons determine their conclusion without any possibility of anexception. 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 normalcircumstances, but do not determine their consequences if the circumstancesare not normal. Thus, legal rules are decisive reasons, but they admit ofexceptions. 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 explicitlyformulated in the written law. Others are implied by logical contradictionsin the law. If two rules with logically incompatible conclusions are applicablein the sense that their conditions are satisfied, there must be anexception to at least one of them. Still other exceptions appear when thereare reasons not to apply the rule, which outweigh the applicability of therule as a reason for application.The last mentioned situation deserves some comment (cf. Hage andPeczenik 2000a; Peczenik and Hage 2000). In most cases, legal provisions areapplied if their conditions are satisfied. With hindsight, such cases may becalled routine ones (``easy'' ones). A decision in such a case follows from anestablished legal rule together with the description of the case. Sometimes,however, there are major objections to applying legal provisions. Then oneis prepared to make an exception. Such cases are with hindsight called ``hard'' ones. In hard cases, almost all legal provisions can be defeated on thebasis of weighing contributive reasons for and against their application. Tobe sure, routine cases, too, involve values and choices, but these arecommonly shared and uncontroversial. Thus, the everyday use of rules isnot to weigh them. Weighing rules is not an everyday defeasibility, buthard-case defeasibility. For a lawyer has a good reason to ask questionsabout 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 theoriesproduce principles and they also produce defeasible rules. In other words,legal doctrine may produce ``subsidiary'' general rules, from which thestatutory rules are exceptions. In classical Continental systems, such generalrules are often produced by general theories, such as those discussedabove.16

A sceptic can now object in the familiar manner. Would it not be better tohave a system of non-defeasible rules? Would it not be better if all the lawwere 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 exceptionfrom the wording of the law appeared to be reasonable. Some philosophersof law tend to explain this fact by invoking the vagueness of ordinarylanguage. But the main source of counter-examples to all rules is not linguistic.If it were linguistic, the problem could be solvable by programmingall law into a computer-language. But it is precisely the computer expertswho are now making big efforts to build defeasibility into their models oflaw (Hage and Peczenik 2000a; Peczenik and Hage 2000).The main source of the defeasibility of legal rules is that our moralreasonÐwhich is behind all lawÐhas a spontaneous capacity to findexceptions from old rules, once life confronts us with new situations. Thisspontaneity can be simulated in a computer by introducing a randomoperator. 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 atthe expense of injustice. Hence, we ought to have some defeasibility in thelegal system. In the light of it, it is plausible that juristic doctrines, too, aredefeasible.The problem then becomes a far less radical one: Do juristic doctrines notintroduce too much defeasibility? Granted that we need general normativetheories with a space for exceptions, should such theories not be less vaguethan 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 despitethe fact that they do not create clear rules. They create flexible ``boxes'' intowhich rules can be put, and they trigger doubt as to some rules. All this isnot precise at all, yet it appears to make sense of the law. In other words, ithelps us to see the lawÐand thus societyÐas something meaningful.We have no analytical tools to show why it is so. Perhaps the human needof coherence is greater than the need of clarity, at least in some circumstances.Vague juristic doctrines were acceptable to the great lawyers of theGerman 19th century because coherence was perceived as more importantthan clarity. Many of my Swedish colleagues prefer clarity to coherence. Butthen, they have problems with hard cases.

7. About Ontological ObscurityThe problem of ontological obscurity is even trickier. It is tempting to thinkthat there is an underlying order behind the juristic doctrines. In naturalscience, one can talk about a neat world of neutrinos and prime numbersbecause there are regularities in the underlying reality. To an alien, thisunderlying reality mayÐjust mayÐappear differently than to us.We simplycannot know. What we know is about neutrinos, etc., not about the metaphysicalreality behind them. Still it is plausible to assume that the world initself exhibits such regularities. Perhaps analogously, what we know in thelaw is about adequate causation, etc., and not about underlying ``deeper''reality. But there may be something in reality itself making such theoriespossible, precisely as there is something in reality itself, making physicspossible. This ``something'' is difficult to grasp because of the normativecomponent of juristic doctrines. Adequate causation is causation that oughtto lead to liability. The real existence of this ought-component must havesomething to do with the human mind. Perhaps it must have something todo 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 legaldoctrine, we can theorize law, as follows. The law exists because peoplebelieve in the law, but the law is not identical with the beliefs. Law superveneson human beliefs, preferences, actions, dispositions, and artefacts.One way to theorize these observations is to begin with Eerik Lagerspetz'stheory 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 areason 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 coherentand morally binding (see Section 2 supra), we get two competing theories oflegal doctrine. The first is that legal doctrine gives us knowledge of thecoherent and morally binding law that already existed before the constructionof the theories, even if the legislation-cum-judicial practice was neithercoherent nor moral. The second is that the doctrine changes the law into amore 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 andmoral, before legal doctrine told us so. In other words, a legal scholar candiscover 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 causalresults of one's negligence. Assume that Dr. Hercules works perfectly and that hisreasoning 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 existedalready before t1 [_]Alternative 2: What is derived is a new valid legal norm. The norm has come intoexistence 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 ofthe classical LD (legal doctrine) of the 19th century. If the derived norm was alreadyvalid law at t1, Hercules was right from the beginning. His argument, we assume thatit was perfect, leads to the most coherent theory of the law. Presumably, this theoryincludes the belief that most conventional rules and institutional rules are valid legalrules, and the belief that most of the rules that are valid are conventional orinstitutional rules. But some of the conventional and institutional rules may havedropped out in order to maximise coherence. Moreover, some rules may have beenadded to enhance coherence, for instance rules that point out exceptions to otherincluded rules that conflict in some cases [_]

To state that the norm discovered by Hercules' reasoning already existed, means thatthis norm is a part of the legal system described by (part of) the most coherent theoryof everything. Hercules' reasoning constructed this theory and the law is by definitionthat which corresponds to the legal part of this theory. (Peczenik and Hage2000, 341±2)Thus, the morally binding law depends on two things together: on theindividual's knowledge of legal institutions, and on moral deliberation. Thefirst supervenes in its turn on mutual beliefs; the second depends on motivationsand dispositions of the individual who performs the interpretation. Itapproximates the morally binding law, provided that this individual ismorally sensitive and rational.20

In sum: Personal interpretation of law turns into morally binding law ifthis 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 doctrinemust try to approximate in order to live up to the ideal of descriptive-andnormativeRechtswissenschaft.All this is highly metaphysical. But the point is that such metaphysicsmakes sense of descriptive-and-normative legal doctrine. And legal doctrineis (or at least was) a fact. Personally, I would prefer a simpler metaphysicsdoing 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 somethinglike this:While we believe that the physical world must be coherent, there is no similarexpectation with respect to law, which is a man-made construct. We still expect legaldoctrine, like all science, to give us a coherent picture of law, but that coherent picturemay well portray law as internally incoherent. That law is coherent may be aworking 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 adoctrine about the law, not the doctrine in the law. Thus, it is another kind oflegal doctrine than the one discussed in this paper.I have no idea how many academic jurists of the 21st century work in thelaw, 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 ismerely to argue that the approach of the first kind is justifiable, not todemand that everybody works like that.Last but not least: In some parts of the law, like classical civil law, thenormative-and-descriptive research in the law, assuming that the bindinglaw must be coherent, is easier to perform than in other parts, closer linkedto everyday politics. Internal incoherence of legislation-and-practice in thelatter ones, such as, for example, social security law, can be too great fora jurist to eliminate. Intellectual tools of the doctrine, its skill of interpretationand 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 ofdiscovering the hidden coherence, and then give up and switch to a theoryabout the law, describing, explaining, and perhaps criticising theincoherence.8. As to Legal MotivationAs to the relation between the law and human motivations, the followingmust be added (Hage and Peczenik 2000b).The law exists, it is a fact. Yet, if the law is genuinely prescriptive, itcannot be purely a matter of motivationally inert facts. The law seems to beon the borderline of Is and Ought, which is hard to fit into the view of theworld 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 thereare facts whose existence inherently depends on the motivation, or at leaston 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. OrÐmore 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 isnot completely independent of the persons for which this world exists.Rather, both motivationally inert facts, and motivating-cum-normativereasons are intended to be objective, that is, to be a part of our commonworld, andÐat the same timeÐthey all may turn out to be merely a part of apersonal world of an individual, because this individual uses a (slightly)different conceptual scheme from others. In the latter case, it still makessense to speak about a world, though a personal one (cf. Hage and Peczenik2000b).

By the way, the view that Humean psychology is insufficient to graspmotivation displays an interesting similarity to Leon PetrazÇ ycki's views.PetrazÇycki 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 andsufferings); and (3) will (aspirations, active experiences).This classification cannot be deemed satisfactory [_] Proper self-observation canreveal the existence of experiences in our psychic life not fitting within any one of thethree categories, but possessing a bilateral, passive-active nature [_] such asexperiences of hunger (appetite), thirst and sex excitation [_] We unite into a specialclass all the phenomena of the human and animal mind which possess this bilateral passiveactivenature and term them impulsions. (PetrazÇ ycki 1955, 22±3)PetrazÇycki refused to simply analyse, for example, hunger as a combinationof 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 byfeelings of satisfaction than by those of suffering. The traditional theoryÐwhichregards hunger as a negative feelingÐat once ignores the active side of the phenomenonand confuses the passive experience which is experienced in hunger appetite[_] with the phenomena which may accompany hunger but are not essential thereto.(PetrazÇ ycki 1955, 23)According to PetrazÇycki, there exist, inter alia, ethical impulsions (or``emotions,'' the Russian word is ``emotsya''), divided into moral and legalones. They are characterized as follows:Specifically, psychological analysis demonstrates that there are certain categories ofideas which are component parts of the structure of moral and legal experiencesalike. (1) Action ideas: [_] actions or objects of [_] obligations; (2) subject ideas: ideasof subjects of moral obligations and subjects of legal obligation; and (3) ideas ofrelevant facts: of conditions (in hypothetical moral and legal experiences) [_] Finally,there are (4) ideas of normative facts: moral experiences comprising ideas of normativefactsÐwe should forgive insult because this is the teaching of Christ [_] we shallcall positive moral experiences or positive morality, and the others (which includeno references to external authorities) we shall call intuitive moral experiences orintuitive morality. Legal experiences comprising ideas of normative facts we shallcall positive legal experiences or positive law; those legal experiences which containno references to outside authorities and are independent thereof we shall call intuitivelegal experiences or intuitive law. (PetrazÇ ycki 1955, 56±7)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 personattributing the obligations in connection with certain intellectual processes.(PetrazÇ ycki 1955, 43)However, though undoubtedly a genius, PetrazÇ ycki was no philosopher. Ifwe 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 PetrazÇ ycki's characteristic of moral and legal impulsions(emotions) three observations, namely. that such emotions have cognitive character, namely that they tell ussomething about the underlying reality;. that this underlying reality in some cases consists of binding moralityand 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 inquestion in many different and varying contexts, displays a sufficientdegree of coherence.In sum: Juristic doctrines make the law more coherent than mere legislationcum-judicial practice is. If one equates ``the law'' with legislation-cumjudicialpractice, the conclusion must be that legal doctrine changes thelaw. However, if one conceives the law as inherentlyÐand rationallyÐmotivating, then the incoherent legislation, and incoherent judicial practice

cannot motivate rationally. Of course, they can motivate, but the incoherentmotivation would be by definition non-rational. More precisely, it wouldbe rational in one sense only, namely as a rational fear of punishment. Itwould not be rational in the sense of rational conviction that the law hassuch 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 rationallymotivating fact.Moreover, this deeper law is more coherent than the legislation-cumjudicialpractice, because ``coherence and goodness have more affinity thancoherence and evil'' (Fuller 1986, 91). In other words: One can always profferreasons for the view that an action is good. Those reasons are good if theybuild networks in which one can find reasons for reasons for reasons etc. Anevil action cannot be supported by as complex a network of reasons as agood action. An action is evil because one acts contrary to countervailingreason. Surely, goodness can be spontaneous, but it also must be justifiableon reflection, and this reflection is worthless if it is not coherent.9. As to CognitivismThis 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 thiscontext is, in what sense, if any, can (moral and legal) evaluations (inter alia,the evaluations inherent in legal doctrine) give us knowledge? To say thata descriptive proposition gives us knowledge may be thought to be aboutthe same as to say that it is true. Can a legal interpretative statement-supported by the weighing of moral argumentsÐbe true, even if it isjustifiable only by a set of premises containing evaluations?One way of answering this question involves a theory, which is cognitivistas regards prima facie norm- and value-statements, and, at the sametime, non-cognitivist as regards all-things-considered norm- and valuestatements.The former are true if they correspond to the cultural heritageof the society. The latter may be more or less reasonable in the light ofthe acceptance- and preference-system of an individual, but they are nottrue in the ontological sense. In view of such a theory, knowledge of primafacie values is possible, whereas a well-argued belief concerning an allthings-considered value merely expresses something essentially similar toknowledge, not knowledge in the literal sense (Peczenik 1998a, 13).This theory is open to criticism because it is a hybrid theory. It splits theapparently homogenous category of norms (and value-statements respectively)into two radically different categories, one truth-evaluable, the othernot. Moreover, non-cognitivism does not give us any profound ground todemand coherence of all-thing-considered value judgments (cf. Rabinowicz1998, 17ff. and 23; Peczenik 1998b, 62ff.).23

A better theory is cognitivist, both as regards prima facie norm- andvalue-statements, and as regards all-things-considered norm- and valuestatements.But such a theory must avoid the dogmatism all too well knownfrom classical Natural Law theories. What we need is a cognitivist theorypreserving the intuition that it is easier to contest weighing in particularcases than to frontally attack such values as human life.Now, such a theory is implicit in Jaap Hage's idea that there is no fixeddemarcation line between the objective and the relative (cf. Hage andPeczenik 2000a). As long as we presuppose the concepts and standards of moral-cum-legal practice, we take the knowledge relative to them as objectiveknowledge about the world. Thus, dependence of judgments on conceptsand standards does not rule out their objectivity. Only when we startdoubting 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 todoubt basic moral values, and it is easier to doubt judicial decisions. But, asstated before, the difference is not sharply determined by basic philosophy.The borderline is fluid, contingent. Applied to our context, this implies thatjuristic doctrines may be regarded as giving a kind of juristic knowledgeuntil the theorists confront a doubt as to what they ``really'' do.24 Yet, thetheories survived such doubts, surely not intact, but not extinct either. Thisgives a reason for relativising the doubt that relativises the theories.10. About FragmentationJuristic doctrines are interesting only if they have normative consequences.But it is difficult to say how they can be normatively binding. This factcreates a problem as to their relation to basic moral philosophy. No doubt,the most profound discussion of normative problems, taken up by juristicdoctrines, 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 causationin torts could be judged differently from a utilitarian, a Kantian, or anAristotelian point of view.Moreover, such an overarching moral theory may be difficult to apply.For example, the utilitarian calculus applied to such hard cases mustbe immensely complex. Another example: A reasonable overarching moraltheory is composed of principles that must be weighed and balanced inparticular cases. Such weighing may be difficult to directly justify on thebasis of philosophical considerations. Then, the juristic doctrines can givethe rules of thumb to approximate a utilitarian calculus, or to approximatethe weighing of basic principles.Last but not least. Concepts evolved within legal doctrine are not alwayseasily related to moral philosophy. Legal tradition and the tradition of moralphilosophy have many links, yet they are not identical. For example, thelegal one is more Roman, the moral one more Greek. For many reasons, thewealth of deliberations provided within the legal doctrine is not always easyto translate into the concepts of moral theory.

The conclusion must be that the juristic doctrines are valuable ``islands'' tobe linked with moral theory by ``bridges'' and ``ferries.'' They are not to beseparated from moral theory. Neither are they to be reduced to it.This phenomenon is not surprising. Similarly, any scientific theory claimsto be coherent with a certain branch of science. Generally, each fragment ofknowledge claims to be coherent with a certain branch of knowledge. Thebranches are like islands; they do not form a single continent. But they areconnected with each other. A plausible way of stating this connection is tosay 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 finddifferent 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 knowledgeinto a coherent whole. The merit of reductionism is to look for the links. Itsmistake is to look for fixed bridges, instead of using philosophical(metaphysical?) ferryboats.Accordingly, Eng (1998, 19±21) claims that there exist areas in [_] actuallyexisting argumentation and language that (a) are relatively well delimited,

and (b) have a certain independence with regard to basic ontological andepistemological positions. The independence might be of various kindsand must be shown in particular contexts. But, let me add, concurring withEng, we also need the philosophical links between such areas and the rest ofthe worldview (cf. Eng 1998, 582±4, and, e.g., 361±5).11. About LocalityAnother objection to juristic doctrines is that they are local. They seem toaccount for peculiarities of the law of a certain state at a certain period. Acritic 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 differentEuropean countries. Let me only mention that it has been vividly discussedboth in Poland, and in Sweden. More than that, some theories of this kindhave ancient roots and still preserve actuality. Indeed, they are founded onRoman and medieval scholarship. For example, the maxim audiatur et alterapars, stating that both parties should be heard in the trial, constitutes the coreof many theories of adversary legal process. Such theories appear in manycountries and the maxim has been characterized as ``uralter Rechtssatz, nichterst roÈmisch'' (Liebs 1986, 32). Another example: The maxim pacta sunt servanda, to be found at the core of many theories of contracts, is a Romanprinciple, 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 commoncultural heritage of the Western world.27

Furthermore, this community of values is interlinked with a communityof concepts. Such concepts as ``tort,'' ``contract,'' ``property,'' ``ownership,''etc., may have different extensions in different countries, yet they have thesame core in many countries. Again, these concepts are a part of the culturalheritage of the Western world.12. As to Legal PositivismSince juristic doctrines are fragmented and local in the sense discussedabove, they appear to reflect the core intuition of Legal Positivism. AulisAarnio put it in the following way:The matrix of legal dogmatics [_] would seem to consist (at least) of the followingelements [_](1) A set of legal philosophical background assumptions and/or commitments, normallyimplicit, 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 thesocietal sovereign. The bindingness of legal norms does not need any natural-lawbacking assumption about some kinds of ``superior'' legal principles behind thepositive principles. In this sense, the basic matrix of legal dogmatics seems to containa decisive legal positivist basic standpoint. (Aarnio 1997, 82)This opens the question whether the defense of juristic doctrine does notcommit 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 ifthe binding law itself is fragmented and local. It would, however, be aproblem if the law itselfÐcontrary to the legal-positivistic claim to separationof law and moralsÐwere inherently linked to morality. Moralityappears to be universal, both in its content and in its geographical sphereof application. The juristic doctrines are not. Should not then the doctrinesbe conceptually separated from morality? Consequently, should not the

law itselfÐabout which the doctrines have some truth to tellÐbe thusseparated? To put it sharply: Is not the existence of legal doctrinesÐfragmented and local as they areÐa powerful argument for the conclusionthat doctrinal jurists must consider themselves as legal positivists, on pain ofself-contradiction?To answer this objection, let me state from the outset that the label ``LegalPositivism'' is the most misunderstood one in the whole legal vocabulary.Once one starts to speak about Legal Positivism, one must use much moreenergy to clean up the misunderstandings and to fix the words than to dealwith the problem itself. Having something else to do, I do not make anyeffort in this direction. Let it suffice to simply state two things.First, the points about the locality and fragmentation of juristic doctrinesmust be qualified with so many comments (see above) that one would bewell advised not to derive strong conclusions from the phenomenon.Second, the universality of moralityÐas opposed to the social and hencelocal character of the lawÐis itself open to much discussion. For example,a communitarian would see all morality as inherently bound to a certainsociety. Moreover, one need not be a communitarian to see some nonuniversalcontent in morality. Some communitarian components are presentalso in theories proclaiming themselves as, e.g., contractarian. Thus, Scanlon'sbackground assumptionÐleading to contractarianismÐis the idea that moralobligation 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 mayaffect 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 byplacing them within a larger contractualist moral framework [_] The account I haveoffered [_] does this without presenting these judgments as deriving from anysubstantial universal principle. (Scanlon 1998, 342)Moreover:How many valid moral principles are there, then? An indefinite number, I wouldsay. (Scanlon 1998, 201)

Finally:What people have reason to want depends on the conditions in which they areplaced, and among these conditions are facts about what most people around themwant, believe, and expect. (Scanlon 1998, 341)In sum: In view of such a theory, moral principles are also local andfragmented, in their own way. If then the law were inherently (and thus``anti-positivistically'') linked to morality, the relative locality and fragmentationof the juristic doctrines would not appear strange at all.The simplest morally based explanation of locality would be that universalmoral principles, or at least a general moral theory (such as Scanlon's) maywell entail that what is binding in a given society partly depends on practicesthat are common within this society. This observation applies to local moralopinions, to local legislation, and to local juristic doctrine.13. Legal Theory and Legal PhilosophyLet us now reflect a bit about what has been done in this paper. The problemwas how to make sense of juristic doctrines, with their normativity, ontologicalobscurity, vagueness, fragmentation, and locality.As to normativity, we have simply re-stated the well-known objection tonormative 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 andpersonal facts.As to fragmentation, we have drafted a metaphor of islands and bridgesin the sea of the world picture.As to locality, we have stipulated a common cultural heritage of theWestern world.All five moves are par excellence philosophical. As such, they are inescapablycontroversial. Does it mean that juristic doctrines are inherently linkedto a definitive philosophical position, with all its weaknesses?Not at all. The point is that legal doctrine is (or at least was) a fact. Seriousand able people devoted their lives to it. I prefer philosophyÐeven a riskyoneÐshowing that they have been right, to a philosophy making big fools ofthem. The conceptions of normative reason, defeasibility, complex ontology,structure of knowledge, and cultural heritage drafted above, hint at onepossible philosophyÐor a cluster of philosophiesÐof this kind. However,this says nothing about the (im)possibility of a better philosophy behindjuristic doctrines. To discover such a better philosophy is a matter for futurephilosophical 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 mentionedobservation about the fluid limit between objectivist and subjectivist talk.We talk in an objectivist manner about things, facts, values, etc., that arethere, unless we are confronted with a doubt. When confronted with adoubt, we relativize and use phrases like ``I think that,'' etc.At a philosophical level, there occurs the question whether we have areason to doubt. Such reasons can be stronger, or weaker. For example, thereis 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 todoubt causality, etc. And there is a still stronger reason to doubt moralnormativity. Anyway, at the level of philosophical basic positions, a philosopheropts for a philosophical theoryÐsometimes with the claim that thisis the only true theory, sometimes without such a claim. This theory giveshim the basic reasons for or against doubting juristic doctrines. Then, hederives conclusions as to the law, juristic methods, etc. However, all suchbasic philosophical reasons are linked to complex philosophical positions. AKantian would doubt other things than a Humean, and so on.At the level of legal theory, we can simply state that the philosophicalpositions are in fact controversial and then we can abstract from them moreor less, depending on the question to be discussed.30 At this level, a juristmay start from a description of the legal method, note that many interpretationsof this method are possible, and that they vary with the assumedbasic philosophical position. Then, he can note that the legal method makessense when one philosophical position (philosophical theory) is assumed,and no sense when another is assumed. He can even note that differentfragments of legal method make sense under different philosophical theories.If he is a philosophical relativist, he stops there, like Jerzy WroÂblewski(cf. Peczenik 1975)31. But he can also make another philosophical choice,and tell us that the general philosophical theory that implies that legaldoctrine makes sense is probably the true one. To conclude this, he needsthe assumption that the persistent practice of jurists cannot be all wrong.This assumption is, of course, a general philosophical assumption, and mustbe argued for at the philosophical level.

At the doctrinal level, the jurist often produces theories without reflectingabout their philosophical implications. This results often in a mixed position.Some philosophical positions fit one fragment of juristic work, other philosophicalpositions 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 epistemologicalpositions (foundationalismÐcoherentismÐscepticism), and betweendifferent (onto)logical positions (logical atomismÐholism).32

Last but not least: What is the point of such reflections as these? The mainpoint is practical: To defend legal doctrine against philosophical objections,and to point at the wide range of philosophical positions that make legaldoctrine not only possible but also justifiable.A politically minded critic can now say that all this talk is just a reaction tothe democratic division of powers. He can also say that political democracydemands political pluralism, and that political pluralism rules out theoriesof normative juristic knowledge. Finally, he can accuse the present author ofthe intention to shift some power from the parliament (or even from thePeople) 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 somepower from the politicians to the jurists. But second, there are politicallyphilosophical reasons for doing it. These reasons are, however, discussed inanother paper (Peczenik 2000). Third and last: Whether the views developedin the present paper are justifiable or not (and thus probably true orprobably false), depends on the soundness of the theoreticalÐmostly philosophicalÐreasons preferred here. Their justification and truth-value is, onthe other hand, utterly independent from the position of the author as to thebest division of powers in the society. The arrow points in the oppositedirection. Namely, if the views developed here are sound, they bring consequencesas to the best division of powers.This is a paper in legal theory, and legal theory is a philosophicaldiscipline with claims to truth. It is not an exercise of political arbitrariness.14. As to Legal TheoryIndeed:What is legal theory? It has many names: general theory of law, theory of state andlaw, allgemeine Rechtslehre, jurisprudence. Its content is a mixture of legal philosophy,methodology of law, sociology of law, logical analysis of normative concepts, somecomparative law and some study of national positive law. The didactic value of legaltheory is great. It can give students of law elementary information about philosophyand social doctrines. I believe that such information can facilitate the work oflawyers. The scientific value of legal theory is, however, problematic. Nobody can becompetent in philosophical, logical, sociological and legal disciplines at once. Theprogress of doctrine is rapid. A lawyer, even if working in legal theory, needs greatereffort to become an expert in some part of logic or philosophy or sociology. In order todo any creative work of value, he must rather find a topic whose discussion requiresa 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 onlybe a teacher while his scientific position would recall that of a hero in A. Bester's doctrinefiction: 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 themnow, only because Mark van Hoecke has kindly quoted them. Yet, I stillagree with everything, except one sentence. Instead of searching for legaltheory ``in the province of legal principles,'' I prefer now to go back to myoriginal idea from 1966 (Peczenik 1966, 1967), and to focus on the justificationof legal doctrine. In my opinion the core of legal theory is a philosophical

discipline, analogous to a philosophy of science.34 It is indeed aphilosophy of legal doctrine. Legal doctrine itself is something peculiar.Legal theory tells us how peculiar, and it also tells us the conditions underwhich the legal doctrine can be OK.35

15. The Last Reflection: Legal Theory Within Juristic DoctrinesThis observation does not imply anything at all as regards the division oflabour between professional legal theorists and jurists working with doctrinesin specific branches of the law, such as private, public, criminal, andprocedural law. Juristic doctrines are not only in need of a meta-theory butalso in need of self-reflection, including a philosophical one. Some basicproblems are easier to solve at the level of generality displayed by legaltheory, others at a lower level of generality within particular legal disciplines.A good guess is, however, that these ``parties'' need each other. Alegal theorist faces a risk of knowing too little about technical details of thelaw. An expert in a special legal doctrine faces a risk of being too narrowminded.Legal ``science,'' as all science, is a collective enterprise in whichdifferent practices fertilize each other.University of LundBox 207S-22100 LundSweden