Logic of Problem Solving and Logic of Justification

men are mortal / Caius is a man / Caius is mortal"—can be claimed to represent the syllogism of law-application only provided that a series of further propositions presupposing it are also accepted. These are the following ones: (a) operations with facts and operations with norms can be separated from one another, (b) operations with facts and operations with norms follow one another in the judicial process as cognitive, respectively evaluative/volitive, components of the process; (c) legal conclusion Finally reached is of logical necessity;

and (d) judicial process is totally governed by the law.

As a matter of fact, these presuppositions are meant to mean that:

(a) the judge will "start out from the law" in order that, in reaching the decision, he/she will "accomplish the law"; (b) the decision is a consequence of the law as reflected in the given case by gradually breaking down the generality of the legal order to the individuality of the case; (c) propositions a and b apply lo both aspects, or parts, of judicial activity, namely the judicial act of subsuming the case to the law as a case of the law, on the one hand, and the one of meting out legal consequences to the concrete situation, on Ihe other.'

However, claiming that we are stemming from the law in judicial process can be accepted as an argument only provided that we

Cf. the socio-ontological version of (lie reflection theory of Marxism which, by referring to the "onlological fact" of the institutional differentiation between law-making and law-application, emphasizes thai the point of departure for applying the law is provided by the law itself whenever law is put into action in a legal order.

PESCHKA (1985), particularly pp. 223 el seq.

characterize judicial process either as logical deduction or epistemological reflection.² Consequendy, the claim is much less convincing if it stands for a general theoretical formulation.

For the logic of problem solving may define a direction and methods for the process of reasoning, which are simply opposed to the direction and methods defined by the logic of justification.

1 hough apparently the same operation can be characteristic of both kinds of logic, they are nevertheless not capable of being substituted one for another. The first is instrumental in finding the solution, the second in checking it. In general (and also in law in particular), axiomatic reasoning (deduction or demonstration, i.e. any procedure setting the claim of logical necessity) can at the most be instrumental in having a posterior control of what has finally been reached; and not as a tool of conducting the search for it That is, formal demon-stration is posterior to intuition and also to the issue it demonstrates.³ This is to say that justification of decisions is in fact posterior to the decisions as a control of their system-conformism,⁴ instead of being a tool for actually achieving them. In the same way as we can state that the motivation of decisions stands for their quasi-logical rationalization, instead of reporting about the thought process which has reached its climax when the decision was actually taken.

In this way, it is not too far away from reality to conclude that

"[historically and, as far as the thought process is concerned, also actually, it is the 'case' necessitating a 'solution' that serves as a stepping stone."^s For within its own reach—that is, having in mind the distinctiveness and the discreteness of fact and norm as per-ceived by the judge—the stand formulated above seems easy to defend. However, when interpreted as a theoretical answer, it

Tins is the case when legal process is explained as specific, typifying trans-formation of social relations which, on their turn, will be projected back to social relations. Cf. PESCHKA (1965), ch. Ill, par. 2; PESCHKA (1979), ch. I, par. IV.

3 Cf., first of all, POLY A (1945).

4 Cf., e.g., WROBLEWSKI (1971).

5 FIKENTSCHER (1977), p. 202.

proves to be both narrow-minded and simplistic. It is itself not exempt from having been based on the assumption of the syllogism of law-application, either, as if it were to suggest: "Bring in your fact so that I can attach my law to it!"

A genuinely theoretical description has to commence at an earlier stage. It has to depart from the recognition that the event we hold an interest in springs from something differing from, and also preceding, the "case". For to have a "case" is a relatively late product of the legal process. Properly speaking, it is a relative end-product of abstract institutionalization. Precisely, it is the outcome of some events which were to have been formalized, artificially con-strued, and also simplified. In the process, formalization is made in a way that—as reduced to, and pigeon-holed as, one definitively defined actualization of the legal order—it can provide the conceptual basis for taking an action within the order.

"When the client pours out his troubles to his solicitor, the first step is to discover the legal pigeon-holes in which the facts are to be placed."* Well, again, we may only state that notwithstanding the merits of such a sensible description, the same objection can be raised against it. For "facts" are by far not yet given at this very stage. Practice can only start out from the recognition of a problem, that is, of its identification, conceptualization, and classificatory expression. That is, practice will only start out from the realization that I want to have something or to do something.⁷

All I see at this point points to the conclusion that "facts" are in no way given at any primitive stage. That what is given, first, is at least an elementary awareness of what I wish and, second, also the situation which I claim it to offer some ground for formulating that which I wish. It may be so that, at a rather primitive stage, neither

6 PATON (1946), pp. 155 el seq.

7 "Any construction of facts sets out from raising a question [...] The way of how this question is formulated will at all time also determine the way of how it is going to be responded to." HRUSCHKA (1965), p. 22. Albeit this exposition may be fairly illustrative in its own context, it will be seen as one-sided once regarded as a general theoretical formulation.

expressed wish nor specifically defined situation that could be referred to, are present. For 1 have to know: nothing becomes isolated by itself from within the totality. It is us, only and exclusively us, who start isolating anything from within the totality by the very first act of having named it.

The way by which we perform isolation varies in function according to the following factors: (1) the reason of why I am naming, and (2) the variety of names to which I am disposed for naming it.

Clearly enough, as many nam cable facts can be referred to the totality, as many names are available for their naming. That is, as many facts may be stated as much experience I have gained in order to ascertain that I can proceed on (heir naming to construe them as facts.

The first step to proceed on is to have any wish, even if unspeci-fic, loose, or unexpressed. The consecutive steps will be formed from the following operations: tentative decision about the goal, defined primarily (and also on the alternatives to it); selection of the strategy and also of the paths which may be instrumental in which I can accomplish it; conceptualization of the situation in the light of the goals, as well as of the strategies and the pathways, which are defined in respect thereto; and finally, selection of the facts by reference to which the situation itself will be defined and located.

Needless to say that all these operations imply some kind of evaluation of the practical situation with reference given to consider-ations of law. No need to say, either, that both parties to the procedure, as well as the judge, all have their own roles to play, distinct from, and at the same time co-related to, one another. Being spokesmen of different interests, they bring their specific points and stands into the process. And all this means that neither "circum-stances", nor "motives", nor "situations" (which seem to urge a decision) can be found, or made available, as ready made. None of them offers an indisputable starting point. Otherwise expressed, both the factual framework of and the references made in respect of the dispute are themselves formed by the acts of the parties to the given procedure. The way in which they are established and/or

shaped by the acts of the parties in the procedure is generally defined by the tactics of the same parties, which they can re-set or re-shape at any stage of the procedure.⁸

Accordingly, neither case nor norm is given from the very beginning. What is given is their "universe," at the most, according to its logical definition.⁹

In consequence, what is going on is a game, with rules valid in an institutionally established framework. If conditions for it are given, I may start to move in any direction at any given time. But I have to know from the very beginning that, according to a previously set convention, in order to reveal move in one or another direction, I am expected to discover one or another fact.

And so on, and so on. The rub is that the fact required cannot be taken and brought directly into the game. (Not even the play of the chess game can be reduced to sheer physical acts of holding pieces and moving them, as it can appear to an outside observer.)

The only way I am permitted to show up the fact required is offered by entering into a second game within the first one. And I may do so only by asserting that that which I state as a fact is actually the case, and that this last statement can also be proved.

Of course, this second game, played in order to bring facts into the game, will in the course of the procedure be identified with the game itself. For a judgment upon the fact I have brought into the game will logically imply a judgment touching upon the wish I have intended to realize when I have entered into the procedure.

As to its structure, the game in law, procedurally played, will be made up of a series of moves, succeeding after, and building upon, one another. This is one of the features which makes it analogous to the game of chess. For, in both, every step is tactically related to, as actually relying upon, another. It goes without saying that each and every step may, and will actually, have a variety of meanings and contexts. That is to say, each and every one of them

8 Cf., e.g., DERHAM (1963), pp. 338-349.

9 See ALCHOURR6N and BULYGIN (1971).

also implies the possibility of becoming actualized differently, resulting in the display of a variety of own individual meanings and contexts.

As I have already noticed, when we are analyzing the under-standing of the "development" of the meaning of any given human behaviour, the meaning of each and every new step, or move, or aspect, of human activity will finally have been circumscribed, and also defined, by the previous stepfs] (and move[s] and aspectfs]) through their historically superimposed cumulative context. That is to say, any one (apparently single) human behaviour is the (relative) end result of a total process. And the progress embodied by the process in question can only develop step by step, move by move, only gaining an attributable meaning posteriorly. For the contextual position of a given step within the process (that is, its systemic relation to the prospected, or idealized, whole in formation) will only become defined posteriorly. Or, formulated differendy, the relative end result of the total process at any given time will make any step, or move, the antecedent of that which the whole process will eventually resolve upon later.

Now, turning back to the main question, we may conclude that problem solving at most does not contradict intuition or whatever kind of intellectual experiment. For its logic is heuristic. Its opera-tions are unbounded, far from being codified previously. As to problem solving in law, it is, paradoxically speaking, free in all aspects, except to the formal expression of its result. It is only legal decision that is bound. Or, pushing the paradoxicality of expression even further, I may even add: it is not legal decision itself, but its formal justification that is at all bound. For in the majority of legal cultures, only and exclusively such decisions can be accepted as ones issuing from the legal order that conform to the requirements the legal order itself sets for the logical and rational justification of the decisions made.^{1 0}

1 0 Cf., e.g., WROBLEWSKI (1974); WROBLEWSKI (1979); WRC-BLEWSKI (1983).

3.2. The Difference between Cognition and Judging