LAW BETWEEN OPTIMALITY AND NORMATIVITY.

• Author: Torre, Massimo La

LAW'S IDEAL DIMENSION. Robert Alexy. (*) Oxford: Oxford University Press. 2021. Pp. xiv + 335. $99.00 (Hardcover).

I.

Professor Robert Alexy's work can be found primarily in his three monographs, (2) which testify to his main areas of interest: philosophy of law, legal reasoning, constitutional rights, and the nature of law. Now we have the fortune to be offered a fourth book, Law's Ideal Dimension, published by Oxford University Press in 2021. This book consists of twenty-one articles, some of them previously unpublished, which cover Alexy's main topics of philosophical research. The book is divided into three parts, the first on the nature of law, the second on constitutional rights, human rights and proportionality, and the third on argumentation, correctness, and law. In the present work, I will discuss what I believe to be the core of his theses as presented through this latest publication.

Professor Alexy's first interest was the theory of argumentation. He then went on to investigate constitutional rights, and finally he focused on the nature of law. Such temporal order is reversed in this latest book. Here, the nature of law is the first issue that is dealt with, and the final part is devoted to the theory of legal reasoning. Alexy's legal theory has been a "fortunate" one, in the sense that it has from the beginning, thanks to its quality, attracted attention and provoked discussion. He has especially been well-received among judges, at least judges educated in the continental European tradition, who have been somehow confirmed and reassured in their approach to judicial review by Alexy's theory of constitutional rights. This is still, I would say, the area where Alexy attracts more attention from practicing lawyers and scholars as well. It is especially his view of constitutional rights as principles, and of principles as optimization precepts, that has been the object of intense discussion and scrutiny (see chapter 8). This is also due to his refined articulation of the principle of proportionality. In this new book, we find important novel contributions in this area (ch. 15). There is especially an attempt to formalize proportionality through a kind of mathematical algorithm, the weight formula (ch. 11). But there is also a sort of revision of the notion of principles, one which I believe to be a most interesting claim (ch. 13). In the final part of the book, dealing with legal reasoning and argumentation, a central part of it is the attempt to pare the blows that Jurgen Habermas directs against Alexy's approach. These are especially two: (i) the objection that a "firewall" against instrumental and utilitarian policies and political power in general would crumble if one conceived constitutional rights as teleological devises, and not as strictly deontological rules, (3) and (ii) the resistance to Alexy's special case thesis, according to which legal reasoning is a case of a more general practical, and thus moral, discourse (4) (ch. 20).

To deal with all the issues handled in Professor Alexy's latest book it would require far more space than I currently have. I will thus focus my comments only on those aspects of the book that I believe to be most topical and relevant.

One of the main points Alexy raises is the rationality of balancing. Balancing is seen as the appropriate way of applying principles of law (chs. 8 and 9). This is taken from Ronald Dworkin's early work, Taking Rights Seriously, (5) but it is further developed and radicalized by Alexy. Against such an approach to reasoning--balancing or weighing--the objection of irrationality has been raised from several quarters and by various distinguished scholars, most prominently, Jurgen Habermas (6) and Bernhard Schlink. (7) Balancing--it is objected--would allow too much discretion to judges, and it might eventually be considered as a form of ex post facto reasoning, an exercise of rationalizing results that have been reached through a different sort of thinking and arguing.

Alexy replies to such criticisms by offering a formalization of weighing through a sort of mathematical formula, the "weight formula" (ch. 11). This--on whose particulars I will not indulge here--is interesting and well articulated. Indeed, such formula somehow offers an objective foundation, and some certainty, to the operation of weighing. It is shaped as an arithmetical operation, whose variables, along a triadic scale, should be given specific numerical value.

II.

Against balancing as the core of legal reasoning, especially once balancing is interpreted as formalizable in mathematical terms, a preliminary objection might be raised. Legal argumentation, one could argue, does not operate with numbers, or not mainly with numbers, and thus it is hardly reducible to a numerical calculation. Alexy opposes this challenge that the syllogism, too, at least as rendered in the vocabulary of logic, is not used in judicial reasoning either. However, it is, as a vocabulary, "the best means available to make explicit the inferential structure of rules" (p. 130). Nonetheless, even if one accepts Alexy's additional argument, and one moreover shares the view that principles are necessarily applied by balancing, a serious objection persists: there is no symmetry between the rationality of rule-application, as encapsulated and formalized in syllogism or formal logic, on the one side, and the application of principles, as implying the introduction of a numerical calculus, on the other.

The use of logic is fully compatible with the deontic character of rules, since it does not affect their normative character. The same could not be said regarding the use of numbers in the application of principles, since the latter leaves principles vulnerable to a reinterpretation in fully teleological, and even economic, terms. In order to demonstrate it, it suffices to say that Alexy refers the rationality standard to Pareto optimality. Moreover, the use of mathematics (numbers) in the application of principles could only be possible, or plausible, if those principles had already been shaped in a way compatible with their treatment in terms of numbers. But this is precisely that which is in controversy. In any case, the attribution of numbers to the variables here, i.e., the intensity of infringement of a principle, is to be balanced against the degree of the opposite principle's compliance, this again to be given a number, with both these operations preliminary to the computation offered by Alexy's weight formula. The ascriptions of a value, a number, to those variables need to be justified by reasons, endowed with propositional content (which numbers do not have). We might even claim that such an ascription should be supported by an appropriate narrative, and this could, again, not be done through a mathematical operation or computing. Alexy indeed acknowledges such necessity of a prior assessment of value and weight (pp. 158-59). Here there is then a scope for decision, or, if you prefer, deliberation, which could only be reduced or closed by arguments and narratives, not by numbers and computations. In this sense, the weight formula still depends upon arguments and narratives, arguments and narratives that are inevitably controversial. They could, however, be assumed as rational, if backed by good arguments.

By dealing with the infringement of principles and their relevance in terms of numbers, we are actually giving principles the character of mathematical entities, numbers. By doing so, however, reasoning by principles might easily lose its normative and argumentative character. Or at least it would be severely downplayed. In this way, we might be exiting the proper territory of legal argumentation, which is embedded in discourses, not in calculations. Weighing is an operation made through numbers, at least in the shape given to it by Alexy, since the entities to be balanced here are conceived as optimization requirements driven by Pareto optimality (pp. 127-28). Weighing nonetheless might hardly be able to justify its own results. Numbers as such are not reasons: to have the force of reason they, as numbers, would need a previous argumentation--a point that is not denied by Alexy. Numbers, of course, can be used in discourses, but they should be previously given a sense, related to a propositional content. This is especially true where the...