The Non-cognitive Dialectic of Normative Classification

Mere logicality, as it follows from what we have seen above, can neither explain, nor determine the intellectual operation which is to go on when facts and norms are being referred to by the judge in a legal process. For logicality, even if omnipresent in any kind of intellectual operation at any time, can only exert a function of control. Logic is one of the possible means of controlling that optimum coherency and consequentiality shall be met in the judicial decision-making process.

Similarly, cognition, too, is omnipresent in any kind of intell-ectual activity at any time, but, again, not for its own sake. In itself, by isolation, it cannot be taken as a factor of explanation or determination.

Evidently enough, both logicality and cognitivity are kinds of homogeneity. As specific domains, points of consideration, frames of reference, filters of thought, etc., they are disanthroppmor-phized, and also disanlhropomorphizing, so that they can display connections of their subject according to their own nature, independently of the observer's particular point of view.

It is to be noted that law represents a specific kind of homo-geneity. It is disanthropomorphized so that it can channel a decision to be issued as abstracted from the particular traits of the person issuing it. For the decision has to be presented as the unique possibility that is concluded from the system as logical necessity. Albeit, at the same time, it obviously has to correspond to values posited in the concrete sociological situation of the judicial event and also, simultaneously, to requirements of

justi-fication posited by the normative system.

In consequence, that which is called subsumption in logic is partly of a symbolic effect, partly of a substitutive character. It is of a symbolic effect insofar as it only expresses with formal emphasis that which is usually termed as the achievement of "the impracticability of doubt", "reflective equilibrium", or "hermeneutic

turning point".^{1 9 2} That is, it has the message thai ihe reflection of the two sides, fact and law, on one another is over: it has been perfected by reaching a convincingly justifiable result. At the same time, it is of a substitutive character insofar as the evaluation (by itself a sine qua non element of the contents of the decision) is substituted by the formal necessity of logical conclusion.

It seems that we have recognized the presence of the cognitive element in the judicial process. What is more, we may even add that, by the advance of legal reasoning, there is an advance made in the cognitive process as well. Nevertheless, the genuinely intellectual achievement is being conducted in another direction in the legal process. And this is to channel both the evaluation achieved by the legal process and the justification of it into the pathways of rational argumentation. That is, to channel them into the system of law and its conceptual framework.

For, albeit it is only the cognitive element that is emphasized by legal ideology, actually each and every move of both so-called judicial cognition and the related judicial activities is in fact subordinated to die practical reaction issued by Ihe legal order.

That is, I may also say that law has the only vocation to justify, through its actualization, the way in which practical reaction can and will finally be m a d e .¹"

As I may formulate in another way, in the final analysis: judicial establishment of facts is nothing other than practical reaction resulting from an evaluative approach. It is one unit, in which two questions—one. How do I see an event, real by the way? and two, What components do I see that it is made up from?—are inter-mingled. The first question concerns the end result. The second

12 Cf., in ihe light of different approaches-HORVATH (1932), p. 130;

RAWLS (1971), pp. 2 0 - 2 1 , 48-51 and 120, referring to GOODMAN (1955), pp.

6 5 - 6 8 ; FIKENTSCHER (1977), p. 1 0 0 - , infra.

E.g. "By his statements of facts, the judge 'makes the statement' of something else than facts. In reality, his statements [...] are the acts of interpretation and of understanding of the meaning that legal institutions will attach (...) to human social activity." PETEV (1985), passim, particularly at p. 183.

question concerns the set of elementary facts inducing the end result, and also the way by which the quasi-cognitive process we speak about can be reconstructed from the end result. All this double composition can remind us of the way in which we have characterized elsewhere legal rule and legal case, as co-shaped into one single, common process.

In point of principle, all that we may say about the particularity of the structure of judicial decision, its argumentation, sham logicality, etc., is in fact related to the conceptual representation of reality, instead of reality itself.

In consequence, both the affirmative and the negative answer we may formulate in respect thereof "will always concern fundament-ally the human wish that the being or non-being (including all intermediary steps) of a concrete just-so-being [Gerade-so-Sein] be established by practice, instead of the general nature of being as such or of its objectivity in a general sense". "For in practice, each and every moment is preceded by an alternative decision, preparing practice in a way that the acting man has to analyse out of his prevailing situation the 'question' which may determine his future action, and, then, he will have to 'answer' it. Due to the par-ticularity of everyday life, and also the parpar-ticularity of language which makes the feeling of the particularity of everyday life quite conscious, this 'answer' will in most cases be done in responding either affirmatively or negatively. In the apparenUy infinite and extraordinarily heterogeneous mass of decisions, this kind of outiook and self-expression is often crystallized by the dichotomy of 'yes' and ' n o ' , and thereby there is an appearance made as if this were a suitable ground for overcoming the logical duality of definition and negation, 'positivity' and 'negativity'.""⁴ Or, as stated in another context, man "works with the combination of propositions and negations, which ordinarily conceals the genuine facts all they are about"."⁵

LUKACS (1971) III. pp. 134 and 132-133.

Ibid, p. 195.

In accordance with what we have seen above, the apparenUy hete-rogeneous components of the legal process in general and the judicial establishment of facts in particular can only be treated as merely technical categories of classification, which, beyond the reach of law, have no direcdy interpretable reference or message whatsoever.

ConsequenUy, they cannot be transplanted quasi-mechanically into another system of values, either."⁶ All this is to say that they do not represent anything in themselves that should or could be regarded as either good or bad under any legally non-specified respect.^{1 9 7}