The Selective Role of Relevancy

"[TJhe material contents of the case to be decided [...] are, at variance with the facts defined in the norm that constitute a case, not compounded by some notionally, clearly expressible circum-stances; they display the entire richness of life. They are not separated in life as facts that define a case; they exist only as concealed in all the conceivable connections of economic and social life, mosdy without having a definite beginning or end."^{1 4} I wonder whether thinking along the line of the above explanation through to the end, could it be said that, "in its social nature, a judgment" is given here which touches upon some individual social relationship; notably, a judgment which has been done "with the standard of a general rule"?^{1 5}

As revealed by reconstructions of the early phases of develop-ment of the human intellect as well,^{1 6} the basic form of human cognition and thought process is analogy, attaching something that is less known (or is farther from being solved or cleared) to something else that is more known (or solved or cleared). It is relevancy that makes the linkage possible.^{1 7} Relevancy is an aspect of things related to one another, which makes the attachment in question conceivable, arguable and justifiable. In other words, relevancy is the recognition of the possibility and feasibility of a linkage. In point of principle, the number and configuration of the varieties of relevancy is endless. Being a function of creative human recognition, no concrete variant or manifestation of relevancy is pre-codified. It becomes defined in and through the cognitive process as one of the factors of its success. In law, too, all kinds of operation with facts have to start from the search after and with the identification of what is relevant. But in contrast to

1 4 ISAY (1929), pp. 350-351.

1 5 SZABO (1971), p. 128.

1 6 LLOYD (1966).

1 7 Cf. KENDAL (1980), p. 12.

non-legal Fields, relevancy is pre-codiFied here: as previously, formally defined in a normative way, it is given to each and every kind of, and situation in, legal processes.^{1 8} Accordingly, legal relevancy canalizes any business directed to gaining (i.e., searching after, identifying, substantiating any claim for, and proving any establishment of) facts in a given path from the very start; at the same time, it also closes any other path (i.e., viewpoint, direction, possibility of interpretation of, or search for, connections)—except to cases in which, one, there are circumstances impeding the pre-codified path to be followed and, two, the law itself permits that any other path may be taken into consideration. In consequence, it goes without saying that law as a homogenized medium "deforms"

the way in which facts and connections are established, i.e. iden-tified and conceptualized.^{1 9}

Accordingly, the problem of the relevance in law lies in the fact that it constitutes the point by which any "natural" description of both thought processes and judicial processes is turned upside down. Namely, legal process is usually characterized as a kind of problem solving, departing from any actual event in order to arrive at a practical answer (or reaction) to it, upon the basis of and with a reference to its qualification within the notional pigeon-holes of a normative system.^{2 0} But law as such has simply no means to approach and treat events as events. What is more, due to its homogenized medium, law as such has simply no contact with events as events. For a contact is preconditioned by any ele-ment (i.e., aspect and/or connection) of the event being exposable, and actually becoming exposed, as a problem itemized within the legal system. And this is only possible through an attachment to what has previously been nonnatively projected for such an

In consequence, such a relevancy is at the same time also prescriptive. In contrast to it, ALCHOURR6N and BULYGIN—in(l971), p. 103-1 erm the relevancy resulting from normative enactment "descriptive", and confront it to the "prescripuv-ity" of the relevancy which is only axiologically founded or determined.

1 9 S Z A B 6 (1971), p. 177.

2 0 Cf. infra, par. 3.1.

itemizaliorr—that is, in case of relevancy. Consequently, the fact that there is something characterized as "fact in law" is determined only and exclusively by the law and not by the "nature of things".^{2 1} In other words, law is not only a basis of classifying general qualifica-tion. In the whole business with facts, it is also of a constitutive character and effect. It predetermines from the very start which kinds of facts and configurations of facts can at all be searched for and established.

"[Tjhe same system of positive law offers, according to the choice of those interested, different webs of projection, and the same fact can display, according to the web applied, the contradic-tory characters of licilness and illicitness."^{2 2} This statement allows at least two conclusions to be drawn therefrom: (1) in the function of the choice of relevancy made, different facts can be established in respect of the same event; and (2) in the function of the normative context taken, the same facts can also be differently qualified. It is due to the role the law plays in the selection of facts that one can say: there is no fact in law which is given as an objective given, i.e. as the pure product of reflection, as a really

"pure" "fact" with no reference to rules.^{2 3} Notwithstanding, it is obvious in the light of a purely logical reconstruction that, in principle, it is a "Universe of Cases" that I project onto the single event in order to see whether it belongs or not to the "Universe of Relevant Cases" (by displaying any of the properties of the

"Universe of Relevant Properties").^{2 4} Or, providing that there is relevancy at all, it is this "Universe of Cases" that defines, which properly, by the force of which relevancy, will lead me towards the construction of which case.

2 1 SILVING (1947). p. 642.

2 2 HUSSON (1974), p. 259.

2 3 Cf., e.g., NERHOT (1985), p. 19.

2 4 Cf. ALCHOURR6N and BULYGIN (1971), ch. II, section 2 and ch. VI, sections 2 and 4.