Introduction
This post aims to clarify the forms and rules of internal justification of judicial decisions according to Robert Alexy.
Alexy explains these forms and rules using the notation of predicate logic. However, I chose not to use this notation to clarify the topic.
Forms of internal justification of judicial decisions
The simple form of internal justification is identified by Alexy (1989, p. 222) as (J.1.1) and has the following structure:
1) If a hypothetical natural or legal person H has the characteristic T, then such person is obliged to perform the action R.
2) Concrete person A has characteristic T.
3) Then the concrete person A is obliged to perform the action R.
The simple form is insufficient to deal with complex cases. Some of these cases are situations in which:
a) a rule provides several alternative properties for the hypothetical fact;
b) a rule has several legal consequences;
c) a rule is formulated with expressions that admit of multiple interpretations;
d) a rule needs to be complemented by explanatory, restrictive or extensive rules.
It is necessary to adopt complex forms of internal justification in those cases where the simple form is insufficient.
Alexy (1989, p. 223-227) labels the complex form of internal justification as (J.1.2). This form includes in its structure one or more elements that resolve doubts about the stages of justification. The following is one of these complex forms:
1) If a hypothetical natural or legal person H has the characteristic T, then such person is obliged to perform the action R.
2) Concrete person A has the characteristic Mi.
3) There is doubt whether Mi has the same meaning as T.
4) According to the rule of use of words, Mi does not have the same meaning as T.
5) So the concrete person A is not obliged to perform the action R.
Rules for internal justification of judicial decisions
Simple and complex forms of internal justification are subject to the following rules (Alexy, 1989, p. 223, 226-228):
(J.2.1) At least one universal norm must be adduced in the justification of a legal judgment.
(J.2.2) A legal judgment must follow logically from at least one universal norm together with further statements.
[…]
(J.2.3) Whenever it is open to doubt whether a is a T or an Mi, a rule must be put forward which settles this question.
[…]
(J.2.4) The number of decompositional steps required, is that number which makes possible the use of expressions whose application to a given case admits of no further dispute.
[…]
(J.2.5) As many decompositional steps as possible should be articulated.
Rules (J.2.1) and (J.2.2) apply to both simple and complex forms of internal justification and are based on the principle of universality according to which beings of the same category should be treated in the same way. Moreover, according to rule (J.2.2), the judicial decision must be the logical conclusion of a syllogism whose premises include at least one universal norm together with other statements.
However, rules (J.2.3), (J.2.4) and (J.2.5) apply only to complex forms of internal justification. These three rules are intended to resolve cases in which there are doubts about the meaning of words contained in the norm used to justify the judicial decision.
Rule (J.2.4) requires that doubtful meanings be clarified through interpretive steps until the doubts are eliminated. While rule (J.2.4) requires only the necessary amount of interpretive steps, rule (J.2.5) requires as many such steps as possible. Such a requirement of maximization aims to increase the degree of control of the judicial decision by other persons. This increase occurs through the explanation of inferences that could be implicit and the clarification of the argumentative path.
Conclusion
In Alexy’s view, there are two forms and five rules for internal justification of judicial decisions. The simple form is applicable to cases in which there are no doubts about the meaning of the words contained in the norm used to justify the judicial decision. The complex form, on the other hand, contains several interpretative steps and is used when these doubts occur. The first two rules are based on the principle of universality and apply to both simple and complex forms. The last three rules regulate the various interpretative stages of the complex form.
Bibliographic references
ALEXY, Robert. A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification. Translated by Ruth Adler and Neil MacCormick. 1st ed. New York: Oxford University Press, 1989.