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内容提示: On Law and Reason Law and Philosophy LibraryVOLUME 8Managing EditorsFRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, SpainALEKSANDER PECZENIK†, Department of Law, University of Lund, SwedenFREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A.Former Managing EditorsAULIS AARNIO, MICHAEL D. BAYLES†, CONRAD D. JOHNSON†,ALAN MABEEditorial Advisory BoardAULIS AARNIO, Secretary General of the Tampere Club, FinlandZENON BAN´KOWSKI, Ce...

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On Law and Reason Law and Philosophy LibraryVOLUME 8Managing EditorsFRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, SpainALEKSANDER PECZENIK†, Department of Law, University of Lund, SwedenFREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A.Former Managing EditorsAULIS AARNIO, MICHAEL D. BAYLES†, CONRAD D. JOHNSON†,ALAN MABEEditorial Advisory BoardAULIS AARNIO, Secretary General of the Tampere Club, FinlandZENON BAN´KOWSKI, Centre for Law and Society, University of EdinburghPAOLO COMANDUCCI, University of Genoa, ItalyERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft,Johannes Gutenberg Universitat MainzJOHN KLEINIG, Department of Law, Police Science and CriminalJustice Administration, John Jay College of Criminal Justice,City University of New YorkNEIL MacCORMICK, European Parliament, Brussels, BelgiumWOJCIECH SADURSKI, European University Institute,Department of Law, Florence, ItalyROBERT S. SUMMERS, School of Law, Cornell UniversityCARL WELLMAN, Department of Philosophy, Washington UniversityFor other titles published in this series, go towww.springer.com/series/6210 Aleksander PeczenikOn Law and Reason ISBN 978-1-4020-8729-5 e-ISBN 978-1-4020-8730-1Library of Congress Control Number: 2008931006© 2008 Springer Science + Business Media B.V.No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work.Printed on acid-free paper9 8 7 6 5 4 3 2 1springer.comAleksander PeczenikLund UniversitySweden Preface to the second edition of Aleksander Peczenik: On Law and ReasonAleksander Peczenik unexpectedly died in 2005 at the age of 68. At that time, he was still very active both as the chairman of the IVR (International Association for Philosophy of Law and Social Philosophy) and as a scientist.During his prolific scientific career, Peczenik wrote several books, and it is a haz-ardous enterprise to pick out one of them as the most important one. If this hazard-ous enterprise needs to be undertaken, however, On Law and Reason would be a responsible choice. In this book Peczenik has tried to bring together many strands of his thought on the nature of legal justification and on the nature of law. Therefore it is a fitting tribute to the scientist Aleksander Peczenik that this work appears in a second edition. The publication of this second edition gives a new public the oppor-tunity to get to know the insights of Peczenik about legal reasoning. What would in the eyes of Peczenik probably be more important is that the public could also learn about Peczenik’s continuous strive for better insight that is illustrated by the main text and by the numerous asides interwoven throughout it.On Law and Reason first appeared in 1989 as an extended and improved version of the Swedish work Rätten och förnuftet. It also builds on earlier work with Aarnio and Alexy and on his book The Basis of Legal Justification. In this sense it is the synopsis of a line of research that has extended over at least a decade. However, Peczenik would not have been himself if this synopsis would have meant the end of his intellectual efforts in this domain. New developments in the field of logic that fitted well with what he had tried to express with less sophisticated logical means sparkled his enthusiasm and inspired him to new work in which these developments were incorporated.1 Aulis Aarnio, with whom Peczenik cooperated for a long time in run up to On Law and Reason, wrote a lucid preface to the first edition of this work, in which he situates it in the intellectual setting that prevailed when the book appeared. I will not attempt to redo what Aarnio already did in a satisfactory way. v1 In particular A Peczenik, ‘Jumps and Logic in the Law’, in H Prakken and G Sartor (eds), Logical Models of Legal Argumentation, Dordrecht: Kluwer Academic Publishers 1997, 141–174 and JC Hage and A Peczenik, ‘Law, Morals, and Defeasibility’, Ratio Juris 13 (2000), 305–325. An updated recapitulation of his views can also be found in A Peczenik, Scientia Juris. Legal Doctrine as Knowledge of Law and as a Source of Law, vol. 4 of ‘A Treatise of Legal Philosophy and General Jurisprudence’, Dordrecht: Springer 2005. Instead I will try to point out how Peczenik’s thoughts developed after the first edi-tion of On Law and Reason, taking in new scientific insights, but without abandon-ing what he wrote in this important book.‘This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.’These words at the beginning of the preface should be taken very seriously.The first thing to notice is that Peczenik’s theory is a coherence theory. This means that Peczenik rejected the idea of foundations that are beyond discussion. Everything may be doubted, including the ideas that everything may be doubted and that coherentism is the way to deal with these doubts. This willingness to draw everything into a reasonable discussion was a central feature of Peczenik’s scien-tific work, but also very characteristic for his personality. Although Peczenik would have been prepared to discuss the desirability of this constructive criticism, he might have found it impossible to abandon it, because this attitude was so charac-teristic for the person Peczenik.A proper understanding of Peczenik’s approach to coherentism requires that one distinguishes between what Raz called epistemic and constitutive coherentism.2 In epistemic coherentism, coherence is treated as a test whether something qualifies as knowledge of some object domain. In constitutive coherentism, coherence is treated as a characteristic of a domain. Applied to the law, the distinction would boil down to it that according to epistemic coherentism, a theory of the law can only count as knowledge of the law if it is (sufficiently) coherent. According to constitu-tive coherentism coherence would be a characteristic of the law itself, and not merely of knowledge. A typical example of constitutive coherentism applied to the law would be Dworkin’s theory of law as integrity.3 For constitutive coherentism, the traditional epistemic literature on coherence4 would be irrelevant, because it dealt with a different matter.5Peczenik would disagree, however. He adhered to epistemic work on coherence to develop a theory about the nature of the law. His theory is, as he stated himself in the preface, a coherence theory of law, not of knowledge of the law. In On Law and Reason he did not elaborate this theme, but in a later paper6 the issue was addressed explicitly. There Peczenik wrote that ‘… the law is what the most coher-ent theory of everything says it is’ (italics added - JH). Here the traditional order of ontology and epistemology is turned around. According to this traditional order, first we have a reality and second and derived we have theories about reality, which 2 J Raz, ‘The Relevance of Coherence’, in J Raz, Ethics in the Public Domain, Oxford: Clarendon Press 1994, 277–326.3 R Dworkin, Law’s Empire, London: Fontana 1986.4 E.g. L Bonjour, The Structure of Empirical Knowledge, Cambridge: Harvard University Press 1985 and K Lehrer, Theory of Knowledge, 2nd ed., Boulder: Westview Press 2000.5 Raz, The Relevance of Coherence, 279.6 A Peczenik and JC Hage, ‘Legal Knowledge about What?’ Ratio Juris 13 (2000), 325–345.viPreface under ideal circumstances amount to knowledge. Reality does not depend on our knowledge of it, while knowledge does depend on reality. For the law, this tradi-tional order is turned around: first we have knowledge, or – probably better - a justi-fied theory, and second and derived we have the object of this theory. The nature of legal reality depends on our justified theories about it, rather than the other way round. Although this is not explicitly dealt with in the paper in question, I think that this reversed order has to do with the fact that the law is part of social reality, and that in the case of social reality, the facts depend – in a very complex way - on our views about them, rather than the other way round.A consequence of Peczenik’s coherentism is that he needed a criterion for coher-ence. For the rather complicated theory exposed in On Law and Reason, Peczenik used the results of a paper he co-wrote with Alexy.7 Although he never abandoned the views expressed there, he was quite enthusiastic about the implications of the view that a good coherent theory would be a theory of everything. ‘Everything’ does not only include all traditional objects of knowledge, such as the physical world and its laws, but also the social world, the realm of the ought, including morality, and – what is for the present purposes the most relevant – the standards for theory adoption and rejection. If a coherent theory includes these standards, coherence requires that it also includes those additional beliefs that should ration-ally be adopted, and that it does not include those additional beliefs that should rationally be rejected. This implies that the standards for belief adoption and rejec-tion need no more be part of a specification of coherence, but can be left over to the coherent theory itself. The only remaining demand for coherence is that a coherent theory includes everything that should, according to this theory itself, be accepted, and does not contain what should, according to this theory itself, be rejected.8Although this abstract view on coherence does not take away the difficulties of specifying what should be accepted, it moves these difficulties from the definition of coherence to the specification of a coherent theory. In his last book, Peczenik seemed to adopt this view by stating that ‘… Alexy-Peczenik coherence criteria appear to be a part of the acceptance set of a juristic theory of law rather than a general philosophical theory of coherence’.9A crucial aspect of Peczenik’s coherentism is the view that coherence is based on reasonable support and the weighing of reasons. When Peczenik wrote On Law and Reason the paradigm of rationality was still the deductively valid argument. The problem with these arguments is that the strength of the argument chain is inversely correlated with the plausibility of the premises. For instance, the argument:7 R Alexy and A Peczenik, ‘The Concept of Coherence and its Significance for Discursive Rationality’, Ratio Juris 3 (1990), 130–147.8 JC Hage, ‘Law and Coherence’, Ratio Juris 17 (2004), 87–105.9Scientia Juris, 147.Preface vii All thieves are punishableJohn is a thiefJohn is punishable is impeccable from the logical point of view. However, the first premise is likely to be false. Although in general thieves are punishable, not all thieves suffer from this liabil-ity. To say it simply, the first premise is stated too strongly, with as consequence that it is not true anymore. However, this strong premise is necessary to make the argument leading from the premise that John is a thief to the conclusion that John is punishable deductively valid. If the first premise is replaced byIn general thieves are punishable the conclusion that John is punishable does not follow deductively but ‘only’ defeasi-bly. This talk about defeasible reasoning has now become more fashionable in legal theory, but when On Law and Reason was published, the application of so-called non-monotonic logic (the kind of logic most suitable to deal with defeasibility) to legal reasoning was still in its infancy. Peczenik was one of the first to emphasize that legal arguments support their conclusions, but that they are usually not valid according to the standards for deductive logic. One reason for this is that many arguments provide reasons for their conclusions, but that these reasons still have to be balanced against other reasons, pleading against the same conclusion.10 Another reason is that rules are often ‘overinclusive’11 and that their consequences should not apply in all cases that fall strictly spoken within their scope.The idea that legal reasoning is defeasible was already a central feature of On Law and Reason. When the logical tools to deal with defeasible reasoning became more widely available in the nineties, Peczenik immediately embraced them12 and put them to use to say in a more modern terminology what he had already said before, namely that in the law arguments support their conclusions without guaranteeing their truth.13On Law and Reason is a book much too rich to discuss all its details, or even all the topics addressed in it. I can only urge the reader to look for himself how Peczenik elaborated the idea that the law is coherent and based on reasonable support and the weighing of reasons. Not necessarily because the reader should adopt all the views exposed in the book. That would even be against its spirit. If Peczenik were still alive, he would encourage the reader to develop his own ideas, in dialogue with what he wrote about these subjects. And then the reader should communicate his newly developed ideas to others, in order that they might continue this process of reasonable development of theories about the law and thereby also the law itself.viiiPreface10 This is the insight used by Dworkin to specify legal principles (as opposed to rules; R Dworkin, Taking Rights Seriously, London: Duckworth 1977, 24) and by Alexy to specify the operation of human rights (R Alexy, Theorie der Grundrechte, 3e Auflage, Frankfurt: Suhrkamp 1996, 71f).11 F. Schauer, Playing by the Rules, Oxford: Clarendon Press 1995, 31f.12 See in particular the papers mentioned in note 1.13 Actually this has not only to do with the defeasibility of legal arguments, but also – as Peczenik recognized - with the provisional nature of their premises. PrefaceThis is an outline of a coherence theory of law. Its basic ideas are: reasonable sup-port and weighing of reasons. All the rest is a commentary.I am most grateful to many colleagues for extensive discussions and criticism concerning various ideas presented in this book, in particular to Aulis Aarnio, Robert Alexy and Horacio Spector. Others to whom I am indebted for comments are more numerous than it would be possible to mention here. I will do no more than to record my gratitude to the readers of the publisher whose penetrating remarks helped me to reorganise the manuscript.A Scandinavian reader must be informed that the present book constitutes a modified version of my Swedish work Rätten och förnuftet. However, the content has been radically changed. I hope that the alterations make the main point of the work clearer. Especially, the key sections 2.3, 2.4, 3.2.4, 5.4, 5.8 and Chapter 4 are entirely new.The book contains extensive examples of legal reasoning and reports of various moral and legal theories. Though relevant, this material could make it difficult for the reader to focus attention on the main line of argument. To avoid this, a smaller printing-type size has been chosen for such a background information.Lund, 18 May, 1989 Aleksander Peczenikix ContentsIntroduction by Aulis Aarnio ......................................................................... 11 The Dilema of Legal Reasoning: Moral Evaluationor Description of the Law? ....................................................................... 131.1 A Theory of Legal Reasoning ............................................................ 131.2 Legal Decision-Making and Evaluations ........................................... 141.2.1 Introduction. Subsumption in Clear and Hard Cases ............. 141.2.2 Interpretative Problems - Ambiguity, Vagueness and Value-Openess ................................................................. 161.2.3 Gaps in the Law ..................................................................... 181.2.4 Evidence of Facts ................................................................... 201.2.5 Choice of a Legal Norm ......................................................... 201.2.6 Choice of a Legal Consequence ............................................. 211.2.7 Obsolete Laws and Desuetudo ............................................... 221.3 The Concept “Legal Decision-Making” 1.4 Why do the Lawyers Need Special Interpretation Methods? 1.4.1 Expectation of Legal Certainty .............................................. 241.4.2 The Law and Democracy ....................................................... 271.5 Legal Knowledge? .............................................................................. 331.5.1 Introductory Remarks on Theoretical and Practical Statements ........................................................ 331.5.2 Legal Interpretatory Statements ............................................. 341.5.3 The Main Problem: Knowledge, Truth and Rightness In Legal Reasoning ................................................ 35............................................. 22............. 242 Rationality of Moral Judgments .............................................................. 392.1 Cognitivism and Non-Cognitivism .................................................... 392.2 Practical and Theoretical Meaning of Practical Statements 2.2.1 Practical Meaning................................................................... 422.2.2 More About Practical Meaning. Norms and the Will ............ 432.2.3 Theoretical Meaning of Practical Statements: Justifiability ............................................................................ 44............... 42xi 2.2.4 Theoretical Meaning of Practical Statements: L-, S- and D-rationality .......................................................... 452.3 More About Theoretical Meaning of Practical StatementsPrima-facie Moral Statements ........................................................... 472.3.1 Criteria of Moral Goodness 2.3.2 General Theories of the Morally Good .................................. 482.3.3Prima-facie Character of Moral Theories and Criteria .......... 492.3.4 The Step From Theoretical Propositions to Prima-faciePractical Conclusions ............................................................. 532.3.5 Permissibility-Making Facts .................................................. 552.3.6 Claim-Making Facts ............................................................... 572.3.7 Competence-Making Facts 2.3.8 Complex Right-Making Facts ................................................ 602.4 Weighing and Balancing .................................................................... 612.4.1 Principles and Values ............................................................. 612.4.2 All-Things-Considered Practical Statements ......................... 622.4.3 Weighing and Balancing of Principles ................................... 632.4.4 Weighing Rules ...................................................................... 662.4.5 Final Act of Weighing and Balancing .................................... 672.4.6 A Step From Theoretical Propositions to Definitive Practical Statements? ............................................................. 692.4.7 The Step From Practical Statements To Theoretical Conclusions ............................................................................ 752.4.8 Concluding Remarks Concerning Logical Relations Between Theoretical and Practical Statements ...... 762.5 Some Examples of the Role of Weighing in Moral Theories ............ 772.5.1 Introductory Remarks............................................................. 772.5.2 Weighing Preferences: Hare’s Utilitarianism ......................... 772.5.3 Weighing Practices: MacIntyre’s Theory of Virtue 2.6 Examples of Weighing in Theories of Justice .................................... 832.6.1 Justice, Equality and Weighing .............................................. 832.6.2 The Role of Weighing In John Rawls’s Theory of Justice .................................................................... 862.6.3 The Role of Weighing In Robert Nozick’s Theory of Justice .................................................................... 902.6.4 Some Concluding Remarks on Justice ................................... 932.7 Support in Moral Reasoning .............................................................. 952.7.1 Gaps and Jumps in Moral Reasoning ..................................... 952.7.2 The Concept of a Jump .......................................................... 962.7.3 The Concept of a Reasonable Premise ................................... 962.7.4 The Concept of Reasonable Support ...................................... 97.................................................... 47..................................................... 59................ 813 Rationality of Legal Reasoning ................................................................993.1 Support of Legal Reasoning. Introduction and an Example .............. 99xiiContents 3.1.1 Fixity of Law. Extensive Support of Legal Reasoning........... 993.1.2 An Example of Extensively Supported Legal Reasoning ..................................................................... 1003.1.3 An Example of Analysis of Legal Concepts – the Concept of Adequacy ....................................................... 1003.1.4 An Example of Substantive Reasons in the Law. The Purpose of Protection. Influence of Moral Theories and Criteria .............................................................. 1033.1.5 An Example of Legal Authority Reasons. Brief Remarks on Precedents ................................................. 1043.2 Analysis of Support in Legal Reasoning ............................................ 1053.2.1 Legal Reasoning As a Dialogue. Reflective Equilibrium and Hermeneutical Circle .................................. 1053.2.2 Legal Reasoning As an Inference. An Example .................... 1073.2.3 Legal Reasoning As a Reasonable Jump ............................... 1093.2.4 Strong Support ....................................................................... 1103.2.5 Depth of Reasoning ................................................................ 1133.3 Legal Rationality and Legal Paradigm ............................................... 1153.3.1 Introductory Remarks on Legal Paradigm ............................. 1153.3.2 Some Theories of Science ...................................................... 1153.3.3 Theory of Science and Legal Reasoning ................................ 1173.3.4 Certain Premises..................................................................... 1213.3.5 Presupposed Premises ............................................................ 1243.3.6 Proved Premises of Legal Reasoning ..................................... 1263.3.7 Other Reasonable Premises of Legal Reasoning.................... 1263.3.8 Reasonableness and Falsification ........................................... 1283.3.9 The Problem of Fundamental Justification of Legal Reasoning ..................................................................... 1294 The Ultimate Justifi cation of Moral and Legal Reasoning ...................1314.1 Coherence 4.1.1 Introductory Remarks............................................................. 1314.1.2 The Concept and Criteria of Coherence ................................. 1324.1.3 Properties of the Supportive Structure ................................... 1334.1.4 Properties of Concepts ........................................................... 1404.1.5 Properties of the Objects the Theory Deals With ................... 1434.1.6 Weighing and Balancing of Criteria of Coherence ................ 1444.2 Coherence, Correctness and Truth ..................................................... 1454.2.1 Coherence and Rational Thinking 4.2.2 Coherence, Data, Presuppositions and Correctness ............... 1464.2.3 Theories of Truth .................................................................... 1474.2.4 More About the Correspondence Theory of Truth 4.2.5 Conclusions About Truth and Coherence .............................. 1504.2.6 Truth and Correctness of Practical Statements ...................... 152........................................................................................... 131.......................................... 145................. 149Contentsxiii xiv Contents4.3 Rational Discourse ............................................................................. 1524.3.1 Introductory Remarks on D-Rationality................................. 1524.3.2 Robert Alexy’s Rules for Rational Practical Discourse ................................................................. 1544.3.3 Robert Alexy’s Principles of Rationality ............................... 1574.3.4 Robert Alexy’s Rules For Rational Legal Discourse ...................................................................... 1584.4 Why Shall Legal Reasoning be Rational? .......................................... 1604.4.1 Introduction. Why Shall Theoretical Propositions Be Consistent and Highly Coherent? ..................................... 1604.4.2 Why Shall Practical Statements Be Logically Consistent? ............................................................. 1614.4.3 Why Shall Practical Statements Be Highly Coherent? Some Conceptual Reasons 4.4.4 Some Conceptual Reasons for Rationality of a Practical Discourse .......................................................... 1654.4.5 Why Shall Practical Statements Uttered Within Legal Reasoning Be Rational? Some Conceptual Reasons ............................................................... 1664.4.6 The Concepts and Life ........................................................... 1674.4.7 Why Shall Practical Statements Be Highly Coherent? Some Empirical and Technical Reasons ............... 1684.4.8 Why Should a Discourse be Rational? Empirical, Technical and Universally-Pragmatic Reasons ...................... 1704.4.9 Why Should Practical Statements Uttered Within Legal Reasoning be Rational? Some Further Reasons ...................................................................... 171.................................... 1645 What is Valid Law? ...................................................................................1735.1 What is a Valid Law? – Introductory Remarks .................................. 1735.1.1 Starting Point: Rationality and Fixity .................................... 1735.1.2 The Purpose of our Theory of Valid Law 5.1.3 Normative Character of the Concept “Valid Law” 5.2 Law and Morality – On Natural Law ................................................. 1765.2.1 Introductory Remarks............................................................. 1765.2.2 An Example of Empirical Theory of Natural Law 5.2.3 Some Critical Remarks on Natural-Law Theories ................. 1805.3 Law and Morality – Legal Positivism ................................................ 1805.3.1 Hans Kelsen’s “Pure” Theory of Law .................................... 1805.3.2 Herbert Hart’s Theory of Law ................................................ 1865.3.3 The Institutionalist Legal Positivism 5.3.4 Limitations of Classical Theories of Valid Law ..................... 1945.4 More about Law and Morality ........................................................... 1955.4.1Prima-facie Law and its Relation to Prima-facieMorality .................................................................................. 195............................... 174................. 175................. 178...................................... 190 5.4.2 The Justification of the Relation Between the Law and Prima-facie Moral Norms. Why Ought One to Follow the Law? ..................................................................... 1985.4.3 Weighing Legal Rules ............................................................ 2035.4.4 All-Things-Considered Law as Interpreted Law 5.4.5 The Relation Between the All-Things-Considered Legal Norms and All-Things-Considered Moral Norms .......................................................................... 2055.4.6 Gaps in Interpreted Law. Legal Interpretation and Moral Criticism ............................................................... 2065.4.7 The Right to Resist Oppression.............................................. 2075.5 The Question of Existence of the Law. Legal Realism ...................... 2105.5.1 Introductory Remarks. Axel Hägerström’s Philosophical Starting Points ................................................. 2105.5.2 Karl Olivecrona On Independent Imperatives and Their Functions................................................................ 2115.5.3 Tore Strömberg’s Conventionalism ........................................ 2135.5.4 Alf Ross’s Predictionism ........................................................ 2145.5.5 Some Critical Remarks On Legal Realism ............................ 2165.5.6 The Three Worlds ................................................................... 2185.5.7 Components of Valid Law ...................................................... 2195.6 Norms as a Component of Valid Law ................................................ 2205.6.1 Introductory Remarks On Legal Norms ................................. 2205.6.2 Internal Validity of Legal Norms ........................................... 2225.6.3 External Validity of Legal System. Criteria Concerning the Content of Norms ......................................... 2245.6.4 Regulative Norms ................................................................... 2255.6.5 Constitutive Norms ................................................................ 2265.7 More About External Validity of Legal System. Action as a Component of Valid Law ................................................ 2315.8 Fact and Values in the Law ................................................................ 2325.8.1 More About External Validity of Legal System: Law-Making Facts.................................................................. 2325.8.2 Ought-Making Facts As Law-Making Facts .......................... 2345.8.3 Evaluative Openness of Valid Law......................................... 2365.8.4 The Basic Norm For the Law ................................................. 2395.8.5 A Classification of Jumps and Transformations in Legal Reasoning ................................................................. 2445.9 One Right Answer to all Legal Questions? ........................................ 2455.9.1 Introductory Remarks............................................................. 2455.9.2 The Right Thesis .................................................................... 2465.9.3 The Right Answer Thesis ....................................................... 2495.9.4 The Incommensurability Thesis ............................................. 2515.9.5 Existence of All-Things-Considered Law .............................. 2535.9.6 Some Remarks on “External Scepticism” .............................. 2545.9.7 Alexy on the Right Answer .................................................... 255.................... 203Contentsxv 6 The Doctrine of the Sources of the Law .................................................. 2576.1 Substantive Reasons and Authority Reasons. The Sources of the Law 6.1.1 Introductory Remarks............................................................. 2576.1.2 Substantive Reasons and Rationality ..................................... 2576.1.3 Authority Reasons and Fixity................................................. 2596.1.4 Sources of Law ....................................................................... 2606.2 Must-Sources, Should-Sources and May-Sources of the Law ........... 2616.2.1 Why Three Categories of Sources of Law? ........................... 2616.2.2 Concepts of Must–, Should– and May–Source ...................... 2626.3 Norms Concerning the Sources of the Law ....................................... 2646.3.1 The Character of Source-Norms ............................................ 2646.3.2 Complexity of the Swedish Doctrine of the Sources of Law ....................................................................... 2666.3.3 Are Substantive Reasons Sources of the Law? ...................... 2696.4 Custom ............................................................................

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