Ehrlich, I. and Posner, R.A. (1974). „An economic analysis of legal regulation.“ Journal of Legal Studies, 3, 257-286. I have introduced a model of legal interaction1 – that is, the interaction between individual protagonists such as judges and the law – which essentially contains the assumption that such interaction can generally be analysed as one of the four perspectives on legal norms or any combination, combination and overlap of these four perspectives. Each perspective has its own characteristics in terms of generating, identifying and dealing with legal norms. The four typical ideal perspectives can be described as an „internal“ perspective, an „external“ perspective, a „sovereign“ perspective, and a „subordinate“ perspective2 (see Figure 1): Previously, I believed that such an „atomization“ of legal reasoning would hardly advance our understanding of what legal reasoning is, and I insisted that we should focus only on the larger entities in 17 I probably did so because after being raised to believe in a Dworkinian notion of law as integrity18 that combines all considerations of law versus false, true versus false, and best versus worse in a more or less homogeneous notion of interpretative research, I was wary of the implications my theory might have. I was afraid to debunk the belief as a myth that any legal reasoning that directly or indirectly, actually or hypothetically aims to decide cases will necessarily be from an internal point of view and will adopt an interpretative approach. I hesitated to draw the conclusion that we might be wrong if we taught students canons of legal construction or case analysis that focus solely on determining what law really is in normative terms. Today, I no longer believe that we should set aside lessons and ideas in a more atomistic way of investigating. Rather, I see the phenomenon of our constant shift in perspective as an important key to understanding what lawyers actually do and – particularly for the purposes of this symposium – why the law is not necessarily based on a particular political environment. The problem of defining life is discussed, using Herman Dooyeweerd`s philosophy of the cosmomological idea as a basis, which asserts that life is indefinable.
Contemporary legal and philosophical writings on the exact moments of life and death are explored. Although the author recognizes the importance of this in determining the exact beginning and end of the legal person, he concludes that the concept of life is unfathomable. The subordinate perspective is the perspective of the protagonists whose activities are subject to the law and who assess their room for manoeuvre, strive to maximize this scope and pursue their own objectives, and evaluate solutions according to their more or less favorable nature to the achievement of these objectives („working under the law“). This is the point of view usually adopted by lawyers who defend the interests of their clients in court; But other people, often secretly, can also argue from the subordinate point of view. Unlike the sovereign perspective, the subordinate perspective does not seek to change or criticize the law, but treats it as a given and tries to find a construct that best serves the interests of a particular party. Unlike the internal perspective, the subordinate perspective does not deal with the „right“ decision alone, but seeks to stretch and shape legal norms to match their own preference to the extent that it is or could be considered acceptable as an important enactment or application of the law. The perspectives just described are ideal types and are rarely found in their pure form. On the contrary, any engagement with the law in its most general sense generally reflects a diversity, mix, or combination of points of view.
A jurist, for example, will take the external perspective for a historical or comparative overview, the internal perspective for classical teaching analysis and the sovereign perspective for critical evaluation and lege ferenda proposals. On closer inspection, any type of legal argument suddenly looks like a mix or a change of perspective. For example, in each sentence of a court decision, we could characterize a subset that cites relevant provisions and scientific views as drafted from an external perspective, a subset that encompasses facts under the provisions as drafted from an internal perspective, and secondary remarks about impact assessment as written from a sovereign perspective. For many lawyers, it is hard to imagine that there is, exists, or could be a phenomenon that deserves to be called a „law“ before or beyond the state. For them, any right necessarily emanates from the State, and if the State decides to apply non-State legal systems, it is because there is a State governed by the rule of law of the State which says that this should be done („transmission link“19). They need the state or a similar political system as the ultimate source of normativity, because any interaction with the law is perceived as an internal (normative) perspective – and there can be no internal (normative) perspective without a source and judicial reference point of this internal normativity. In most cases, the external observer is confronted with divergent statements about the normative content of the law, and a report on the law cannot give a complete picture of all divergent but potentially relevant points of view. A selection is therefore made from the different sources, some highlighted while others neglected. This selection process from an external point of view is based on the „importance“ or „weight“ of the respective source. This may be the degree of ingenuity of the point of view reflected in the source, but the importance of a source is most often measured by the likelihood that its views will be accepted, applied and applied by a hypothetical court: the factors that may matter include rank and reputation, majority and continuity („relative weight principle“14). The following after this exercise of assessing the relative authority of sources is what can be called „descriptive interpretation“; 15 In other words, the protagonist will seek to identify the essential characteristics, to group them into categories or to group them, which, in the case of legal rules, ideally leads to a single reformulated rule or principle, or possibly to several competing rules or principles.
To be considered sources of law, these norms must have legal validity. The validity of the rules, in Hartian terms, derives from some sort of recognition rules5 and, despite what Dworkin has proposed,6 this probably also applies to the principles, as it is obvious that the principles must be clearly rooted in the rules or otherwise reflected in the law to be considered part of the legal system.7 Competing rules are coordinated by conflict-of-laws rules, and competing principles by weighting rules.8 If the normative content of the relevant legal norms remains unclear or incomplete, the rules of interpretation come into play. This led to the formulation of interpretive canons and methodological approaches such as „intentionalism“, „purposivism“ and „textualism“ or to the choice between „originalism“ and „dynamic interpretation“. The idea that law is generally rooted in a particular political context, and the discussion of the „integration“ of law from its political context, stems largely from the emphasis on the internal perspective and hierarchical systems. This focus coincided with the rise of the nation-state in particular, but it describes an ideal rather than what is actually happening „on the ground.“ In reality, the protagonists who deal with the law, such as judges, lawyers, professors or legislators, have always used other perspectives that are not – or at least not to the same extent as the internal perspective – dependent on a particular political context. They can replace elements of the inner perspective with elements functionally equivalent to other perspectives, such as the external or sovereign perspective.
