The Reflexivity of Factual and Normative Operations

be separated as an independent phase in or a component of the judicial process?

According to the basic assumptions of the law and legal pro-cesses, the claim for separation—resulting in the realization that, following the operations with facts and, respectively, with norms, their linkage is the third component, separable both operationally and in time¹³⁵—obviously preconditions the discreteness and other-ness of the individual components. And conversely, if I am to describe the judicial process as the continued mutual reflection of the factual and the normative operations in which both the mutual conditioning of these two sides and their being fed back issuing from their continued mutual reflection are also of a decisive importance (and here I would notice that even the traditional Marxist approach has already concluded that the mutuality of "the

1 3 4 According lo R. v. Morris [1972] I. All R.E. 384, 386 as quoted by

JACKSON (1983), p. 92, no matter how much the definition of "accident" as "an unintended occurrence which has an adverse physical result" is applicable in a crilerium-like way to some situations, there are other situations (e.g. to what extent and in which seriousness of the case can an emotional shock or nervous breakdown be considered an accident) when it can only be decided as a question of degree.

1 3 5 'It will be [...] related [...] afterwards only [...]." PESCHKA (1985), p. 217.

concretization of the abstract rule and, at the same time, the abstraction from the individual case" will unite these two sides, because "only the mutual reflection of these two sides, made to come closer to one another [...] can lead to an act of law-app-lication"^{1 3 6}), it is evident that I am to count with unity in the premisses of decision themselves.

It is well known that in the philosophy of law in Hungary, there is an early formulation of the tenet according to which the legal case and the legal provision are by definition nothing other than correlative concepts mutually defining one another.^{1 3 7} Accord-ingly, not even the legal provision has any meaning in and by itself, since it is to be interpreted in each and every case in principle and its own interpretation cannot be determined by itself.

At the same lime, its interpretation has always a chance of alternativity without, however, having any option backed by the force of logical necessity. That is, all this needs a practical decision, i.e. evaluation in function of value judgments of the given (range of) case(s).^{1 3 8} This is why the author suggests as the only chance left to have the two sides reflected on one another, that is, to make the two sides come closer to one another by continued mental experiment through a "continual distinction"

to the extent which is exclusively conceivable on the basis of the evaluative practical experience and, as such, makes it a necessary solution that the given case shall be subordinated to the legal provision.^{1 3 9} "By repeated hypothetical judgments, we can reduce the irrationality of subsumption to the borderline of the impracti-cability of doubts."¹"⁰

In this way, the methodological insight named as a synopsis here came close to what is called reflective equilibrium by contemporary

1 3 6 SZABC" (1977), p. 254.

1 3 7 HORVATH (1932), p. 116.

1 3 8 Idem, pp. 120-127.

1 , 9 Idem, pp. 128-129.

1 4 0 Idem, p. 130.

moral philosophy."" This is to say with methodological clarity that principles in themselves, at the level of abstract generality, have not too much to say. For instance, I cannot properly judge what I mean by justice as fairness until I fail to circumvent it by testing it through a series of cases in order to set its limiting cases.

It is only by reaching its reflection coming in equilibrium that its abstract generality becomes concretized reasonably meaningfully.

As a methodology, it suggests: the notional volume of a principle or rule can be defined in a way transcending abstract generality if and only if, by reflecting it vis-a-vis groups of cases and, thereby, by circumscribing its borderlines, I fill it with concrete contents. How can it be done? In order to exemplify the difference between morals and the law, let us lake the following simple case. If I say "I follow the moral value of justice as fair-ness" this means at least that, as the basic precondition of all kinds of thought process, I have to meet the requirements of coherency and consequentially in my value system when I am to judge my mentally anticipated or actual behaviour. Due to the fact that there is no pre-codified normative conceptual frame wedged in between the institution of morals and my moral value judgment, I reach my judgment in a way to set out from the principle and the behaviour simultaneously in order to break down the former and build up the latter step by step so that I can formulate my judgment referring to the principle as being reflected against the concrete case. My reasoning keeps on to be dichotomic to the end, i.e. oscillating within the range of the pair of categories of "Yes" and " N o " (A and non-A), for I have at all levels to tell my stand concerning the realization of the principle (as broken down to the given level) in the concrete situation (conceptualized at a given level). Notably, the behaviour in question is either the case of justice conceived of as fairness or the one of its negation (or, properly formulated, either it fulfils it, corresponds to it, etc., or not). Its intensive endlessness notwithstanding, with my mental experiment I can

1 4 1 E.g. RAWLS (1971), pp. 2 0 - 2 1 , 48-51 and 120, referring to GOODMAN

(1955). pp. 6 5 - 6 8 .

circumvent the notion in whatever direction in order to attempt at circumscribing, by the continued reflection between the various types of breaking down the principle and the various types of conceptualization of my behaviour (by excluding, as less coherent and/or consequential, the types of linkage not accepted as the case of the principle), the notional volume and extension of the principle.

In contrast to morals, law is not only conventionalized as an insti-tution; it is at the same time emphatically formalized as well. With the norm completely broken down through normative relevancy, a pre-codified normative conceptual frame will be wedged in between the principle and the behaviour; moreover, in order to formalize reflection as well, behaviour itself also becomes formalized as a case. Thereby, as law case and case law, a normative totality will be assumed to have been projected, a totality within the framework of which the former will be subordinated to the latter.

In this way, both their mutual conditioning and the progress of the reasoning process through their continued mutual reflection are equally self-evident. "The 'interpretation of the texts' cannot be detached from its application to a situation which itself is already 'interpreted'."¹"² "Considering its legal relevancy, the concrete fact of life can exclusively be understood in the light of the con-ceivable nonn(s), while the meaning of the legal norm(s) can only be established through the understanding of the fact of life."^{1 4 3} In consequence, the judicial process is a kind of "thought process in the course of which the 'brute fact' will be reshaped as the final establishment of the facts that constitute a legal case, and the norm text as the brute state of a norm, as a norm concretized to the sufficient depth so that it can serve as a standard to judge the aforementioned fact".^{1 4 4} The operation itself is barely more than

"the wandering forth and back of the look",^{1 4 5} that is, "mutual

1 4 2 LAGNAU-DEV1LLE (1978), p. 528.

1 4 3 KAUFMANN (1984), p. 74.

1 4 4 LARENZ (1975), p. 265.

1 4 5 ENGISCH (1960), p. 14.

interpenetration between the acts of the establishment of facts and the legal qualification".^{1 4 6} Thereby we have already returned back to what is called the "phenomenal form of the 'hermeneutic circle' " ,^{1 4 7} the underlying problem of which can be summarized as this: "the only thing the interpreter wants is to understand this general, i.e. the texl[...]. But in order to understand it, he cannot abstract from himself and the concrete hermeneulical situation he is locked in".^{1 4 8}

For that matter, the hermeneulical situation is nothing else but a situation in a social ontological sense, historically concretely determined at any time, in which consciousness fills in "a function specifically dynamic, having its own existence", and hencewith "die preservation of the memory of past facts in the social memory" will also "act as a social force" insofar as "the consciously preserved experiences of the past, practically applied and consciously processed to suit new situations, also contribute to the objectively produced and objectively efficient conditions of any further steps."^{1 4 9}

Accordingly, understanding can only be interpreted within the framework of a relative totality of ceaseless motion between the

"whole" and the "parts" at any given time and resulting thereby in repeated feedback.^{1 5 0} What mailers from all this for us here and now is that both sides are shaped by, as actualized in the medium of, the other.

Needless to say that the event in life in its directness is not necessarily a function of the norm just as much as the destiny of the norm in its directness is not necessarily an issue of the event concerned. Yet, in its totality the normative sphere has a meaning at all only providing that a world of facts is posited against, as

SCHEUERLE (1952). p. 23.

1 4 7 LARENZ (1975), ibid.

1 4 8 GADAMER (1960), p. 228.

1 4 9 LUKACS (1971) II, pp. 188-189.

1 5 0 Cf., e.g., KUHN (1977), p. xii; FEYERABEND (1975), p. 2 5 1 ; GEERTZ

(1979), p. 239. Cf. also BERNSTEIN (1983), pp. 132-133.

confronted with, it. And normativity can play a role in social life only by assuming that as soon as the bare possibility of becoming related is raised in the mind, actualization will be conducted through becoming actualized by the other. Just in the way as any merely mechanical distinction makes our thought faulty from the very start,'^{5 1} not even in social existence—just because it is made socialized as a thorough socialized existence—can we confront the objective and the subjective either as two entities able to be isolated in and by themselves (as, e.g., two bowling balls which can both be stopped, bowled in parallel or knocked against one another). Once existence becomes socialized, nothing of it can be isolated or confronted with it on the pattern of either "things"

and "processes", or "creator" and "creature",^{1 5 2} for the separation of "material processes" from the "'purely' mental ones" can only be done through a "brutal formalizing epistemological abstraction", since their ontological difference notwithstanding, "on the field of social existence the primary ontological fact of their impact is just that they co-exist inseparably from one another".^{1 5 3}

It is this dialectic of the mutuality of the objective and the subjective that is reflected in that neither the fact nor the norm can be played out as either purely objective or fully subjective against one another. That what can be said regarding the one in their relative totality can equally be said regarding the other too.

"Albeit in the mirror of the facts of life and the judge's subjectiv-ity the volume of the legal rule can be seen differently according to the cutting, in the final analysis, however, it is always the volume of the legal norm that becomes finally reflected",^{1 5 4} the same also holds the other way round: "Albeit in the mirror of the facts of life and the judge's subjectivity the legal case can be seen differently according to the cutting, in the final analysis, however,

1 5 1 Cf., e.g., RYLE (1949), in particular ch. I.

1 5 2 E.g. LUKACS (1971) III, pp. 97 and 351.

1 5 3 Idem, p. 352.

1 5 4 PESCHKA (1986), p. 387.

it is always the volume of the facts of life that becomes finally reflected."

No matter how much it is true at a certain level of generality and in a certain notional context that the contents gained by interpretation in law are "contents of the legal norm as of a legal objectivation of a general validity",'^{5 5} "moving within the limits of the legal objectivation at all t i m e s " ,^{1 5 6} all this cannot mean to reach beyond the problem of the object and the subject and, thereby, the hermeneutic situation. For what is called legal objectivisation can be regarded as legal objectivisation (and not, let us say, some paper product with leaded smear or a non-articulated voice) only insofar as I can understand it as a sign. And obviously it can only be understood as a sign insofar as a socially conventionalized meaning is attributed to it. Or, I cannot escape from its mutual connection, conditioning and determination. I cannot escape from its linguistic mediation, either, to be considered not simply one of the possible choices of my intellectual character or self-expression but as "the instrument and medium of the continuity of societal life",^{1 5 7} maybe the most influential factor of our social existence.

Following this explanation, two equally conceivable and logically equivalent reconstructions are given. 1 may interpret identity in a way from the beginning that similarity expressed as analogicity will stand between existence and its conceptualization. In this case, my operation will aim to "bring in correspondence" the two sides by

"identifying their meaning-relations"—through rendering similar both sides until they will be united. True, subsumption will notionally be excluded, but superfluous as well.^{1 5 8} Or, by concretizing step by step the norm as reflected in the case and by abstracting step by step the fact in the light of the norm, I may make it possible that the two sides can meet so that subsumption will take place, formally at least.

,x PESCHKA (1985), p. 226.

1 5 7 LUKACS (1971) II, p. 190.

1 5 8 Cf. KAUFMANN (1982).

And one of die possible explanations will be the "hermeneutical pressure of the norm and the case" in a way and with the need that the materially just solution of the case will meet the justice of equal treatment according to normfulness. This is Fikentscher's theory of the case norm, in which the hermeneutic pressure "pushes the hermeneutic process to turning point", which, at a time when "with the given yardsticks of the object and the justice, neither the further specification of the norm nor the further breaking down of the notions of the facts that constitute a legal case is not possible any longer", will be reached.^{1 5 9}

3.10. The Limited Nature of Cognition