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The Nature of the Common Law and the Comparative Study of Legal Reasoning
Author(s): Hanns Hohmann

Source: The American Journal of Comparative Law, Vol. 38, No. 1 (Winter, 1990), pp. 143-170
Published by: American Society of Comparative Law
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Comment
The Nature of the Common Law and the Comparative

Study of Legal Reasoning
HANNS HOHMANN
I
The contrast between case law and code law has long been one
of the commonplaces of comparative law.' Traditional accounts of
civil law systems denied to precedent the central place as a source of
law which it occupies in common law countries, emphasizing instead
the preeminence of legislative enactments as legitimate bases for
legal decisions.2 But even though orthodox theory insisted on por-
traying judicial decisions as logical deductions from preexisting stat-
utory premises,3 not all civilian scholars closed their eyes to the fact
that no code could be truly comprehensive, and that judges necessar-
ily had to make law, even as they were purporting to apply a past
legislator's words to novel circumstances unforeseen and unforesee-
able. And so when Benjamin Cardozo published in 1921 his Storrs
lectures on The Nature of the Judicial Process, in which he empha-
sized the creative role of "The Judge as Legislator" against a still
persistent similarly mechanistic American legal orthodoxy,4 he was
able to draw support freely from many Continental scholars such as
Brutt, Geny, Gmelin, Ehrlich, Kantorowicz, Salleiles, Duguit,
Michoud, Zitelmann, Stammler, Kohler, Berolzheimer, Charmont,
Jhering, Vander Eycken, and Demogue.5
But for all their theoretical recognition of judges' contributions
to the development of the law, these civilian authors on the whole
paid fairly little attention to specific cases in their writings. Prece-
dents were not recognized as a separate source of law which could
1. This is pointed out by M. Shaprio, Courts 135 (1981).
2. For a summary of such accounts see J.H. Merryman, The Civil Law Tradi-
tion 36, 46 f. (2nd ed. 1985).
3. On formalistic approaches in nineteenth-century civil law see J.P. Dawson,
The Oracles of the Law 392ff., 450ff.; W. Wilhelm, Zurjuristischen Methodenlehre im
19. Jahrhundert 80ff. (1958).
4. See G. Gilmore, The Ages of American Law 12, 60ff., 75ff. (1977).
5. See B.N. Cardozo, The Nature of the Judicial Process 15ff. (1921).
143
144 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 38
call for special forms of reasoning, and problems of statutory inter-

pretation were usually discussed with examples drawn from the
literature rather than from judicial decisions.6 It is therefore hardly
surprising that Cardozo, whose own book was replete with case cita-
tions, found no occasion in the section of his lecture discussing "Ad-
herence to Precedent" to refer to any of the civilian scholars so
prominent in his text and notes elsewhere.7
This relative inattention of academic writers in civil law coun-
tries to precedent was encouraged not only by the general absence of
any official theory of stare decisis, but also by the argumentative
style of appellate decision themselves, which either did not explic-
itly mention prior cases at all, as in France, or tended to limit them-
selves to using them as sources of fairly abstract legal propositions,
as in Germany.8 But even though the primacy of statutory interpre-
tation in legal reasoning has never been officially abandoned, the ac-
tual role of arguments from and about precedents has increased
considerably over time, particularly in Germany. Especially in the
times of political, social, and economic upheaval following the two
world wars, the courts took a very active role in shaping large areas
of public and private law, often with very little assistance from the
legislator. Vague general clauses provided no more than the barest
minimum of statutory language to work with, and the growing reli-
ance on judicial pronouncements as sources of elaborate systems of
secondary rules created a case law de facto if not de jure, with all
the attendant argumentative problems of consistency and change in
the treatment of precedent, familiar to any common lawyer.9 And
by now, a large and still growing body of case law is an established
feature of practical legal life in civil law countries.10
So far, however, the theoretical treatment of legal reasoning has
not kept pace with these developments. While civilian scholars are
becoming ever more adept at writing case notes, which form an in-
6. See e.g. P. Heck, "Gesetzesauslegung und Interessenjurisprudenz," an article

published originally in 1914. Its ? 2 deals with the judicial decision ("Die richterliche
Fallentscheidung") without citing a single case. For a recent edition of this article
see P. Heck, Das Problem der Rechtsgewinnung. Gesetzesauslegung und Interes-
senjurisprudenz. Begriffsbildung und Interessenjurisprudenz 46ff. (R. Dubischar
ed. 1968).
7. See Cardozo, supra n. 5, at 142ff.
8. On the style of judicial opinions in civil law countries see J.G. Wetter, Styles
of Appellate Judicial Opinions (1960); Dawson, supra n. 3, at 380ff., 447ff.; for a re-
cent comparison see J.L. Goutal, "Characteristics of Judicial Style in France, Britain
and the U.S.A.," 24 Am. J. Comp. L. 43 (1976), supplemented by F.H. Lawson, "Com-
parative Judicial Style," 25 Am. J. Comp. L. 364 (1977), which includes cautionary
remarks concerning Goutal's observations on Britain.
9. For further discussion see Shapiro, supra n. 1, at 136ff.; Dawson, supra n. 3,
at 400ff., 489ff.
10. See R. David, Les grands systSmes de droit contemporains 132f. (7th ed.
1978); Merryman, supra n. 2, at 47.
1990] HOHMANN: LEGAL REASONING 145
creasing part of the legal literature," books devoted to the system-

atic discussion of patterns of legal argumentation persist in paying
no, or very little, attention to forms of reasoning associated with pre-
cedent.12 This may in part be due to the fact that much European
methodological literature has a strong prescriptive bent'3 which mil-
itates against excessive attention to empirical phenomena; but even
a book devoted to legal rhetoric, which emphasizes its orientation to-
wards actual legal practice, does not break out of the general pat-
tern.14 So it appears that for all the obituaries, the dead hand of the
traditional civilian theory of legal sources may still rule from the
grave-even if only over a much reduced domnain.'5And one could
further point to the historically stronger role of scholars and the less
exalted place of judges in civil law countries'6 as additional possible
explanations for this relative theoretical inattention to precedent-
based arguments.
But should a civil lawyer interested in such matters turn to the
legal literature of common law countries for a fuller systematic dis-
cussion of this important aspect of judicial argumentation, the offer-
ings would prove actually not much richer. Even if one leaves aside
overly prescriptive works which ostensibly encourage judges to de-
11. These are particularly important in French law, where appellate opinions are
characterized by a very terse and strongly deductive style, see Goutal, supra n. 8, at
45, so that the underlying reasoning only emerges from the case notes, or from the
rapport written by one of the members of the court to prepare the decision, or the
conclusions submitted by the legal representative of the government; in important
cases rapport and conclusions may be published together with the decision, see Law-
son, supra n. 8, at 369; for examples of such decisions and notes see Wetter, supra n.
8, at 341ff.; for an overview of modern French practice see also Dawson, supra n. 3,
at 411ff.; for a collection of notes on decisions of the West German constitutional
court (Bundesverfassungsgericht), as well as a plea for more such case notes see P.
Haberle, Kommentierte Verfassungsrechtsprechung (1979).
12. See e.g. R. Alexy, Theorie der juristischen Argumentation 334-341 (1978),
where problems of determining the ratio decidendi, of distinguishing and overruling
are mentioned only very briefly at 340; H.-J. Koch & H. Russmann, Juristische
Begrundungslehre 373-375 (1981), where an answer is sketched to the question under
which conditions a precedent may be abandoned; A. Aarnio, The Rational as Reason-
able 81-86 (1987), where the main focus is on the question to what extent precedents
are sources of law, and the question of how the ratio decidendi may be identified is
given some attention at 83-85. Only Aarnio cites a single case in these discussions. A
relatively more extended discussion can be found in M. Kriele, Theorie der Recht-
sgewinnung 269-289 (2nd ed. 1976), but even this is still rather short; Kriele's inter-
est in precedents may not be unrelated to the fact that he received an LL.M. degree
at Yale.
13. On the relationship between prescriptive and descriptive theories of legal ar-
gumentation see U. Neumann, Juristische Argumentationslehre 10ff., 118 (1986).
14. See F. Haft, Juristische Rhetorik (1978), where precedent-based forms of
legal argumentation receive no particular attention at all.
15. In spite of the general recognition of the practical importance of precedent,
civil law scholars still tend to emphasize its limited binding force; see e.g. David,
supra n. 10, at 135f., and Koch & Riissmann, supra n. 12, at 187f.
16. See Merryman, supra n. 2, at 34ff., 56ff.
velop demidivine faculties,17 the major emphasis in systematic treat-

ments of legal reasoning tends to be on problems of statutory
interpretation.18 Books which do focus primarily on courts' ways
with precedent appear to hold out little hope that judicial arguments
about cases might be amenable to the kind of methodical exposition
which would match the rather elaborate discussions of statutory in-
terpretation which dominate the literature.19
In this situation it is very encouraging for scholars with a strong
interest in comparative law in general and in the comparative study
of legal reasoning in particular to encounter Melvin Aron Eisen-
berg's The Nature of the Common Law,20 a book which successfully
undertakes nothing less than a comprehensive and systematic study
of the principles and forms of reasoning employed by courts in the
continuing development of the common law.
II
A central concern animating theories of legal reasoning is the
legitimacy of judges' decisions. Judicial law-making is a fact of life
which provokes ambivalent reactions; it appears that as a society we
cannot live without it, yet also cannot quite live with it. Here as
elsewhere, a frequent response to ambivalence has been denial:
much traditional theory has asserted that judges do not make rules,
but only apply them, and that their decisions are guided only by
legal, as opposed to moral or political considerations.2' Such asser-
tions were always less plausible in common law systems, which
lacked the comprehensive codes characterizing civil law systems,
and in which, therefore, large areas of the law were developed
through judicial decisions not based on any discernible rules of legis-
lative origin. Nevertheless, attempts have not been lacking to assign
to prior judicial decisions the same constraining role as that ascribed
to statutory norms.22 More recently, efforts to maintain the strict
separation between legislative and judicial rule-making have tended
17. See R.M. Dworkin, Taking Rights Seriously (1977) and The Empire of Law
(1986), with their theoretical constructs focusing on the feats of a judge Hercules of
unabashedly mythical abilities.
18. See e.g. H.L.A. Hart, The Concept of Law 120ff. (1961); cf. also N. Mac-
Cormick, Legal Reasoning and Legal Theory 195ff. (1978), where, however, some at-
tention is given to reasoning from precedent at 213-228.
19. See e.g. E.H. Levi, An Introduction to Legal Reasoning (1949) and M.P. Gold-
ing, Legal Reasoning (1984).
20. M.A. Eisenberg, The Nature of the Common Law (1988). Figures in paren-
theses in the text will refer to pages in this book.
21. Cf. supra n. 3.
22. On the rise of legal formalism in the United States in the nineteenth century
see M.J. Horwitz, The Transformation of American Law 1780-1860 253ff. (1977); on
the development of a strict doctrine of precedent in England see R. Stevens, Law
and Politics, The House of Lords as a Judicial Body, 1800-1976 77ff. (1978).
to enlarge the domain of "legal" propositions on which judges can

properly draw in fashioning their decisions, thus maintaining the
distinction in form by undermining it in substance.23
Professor Eisenberg rejects such expedients at the outset (2),
and he states with admirable clarity that judicial rulemaking is not
merely a by-product of settling individual disputes, but that it is a
socially desirable and, in practice, inevitable function of the courts to
enrich the supply of legal rules (4-7). Since he also points out that
judges can never rely solely on doctrinal propositions (i.e. prece-
dents, legislation, and scholarly writings purporting to state legal
rules), but must always also use social propositions (concerning
moral norms, policies, and experience) in making their decisions (1-
3), he is likewise bound to reject theories which limit judicial choice
to decisions which cannot be made on the basis of doctrine alone,24
or to selection between alternatives which are consistent with prior
institutional decisions25 (2). But Eisenberg is also committed to the
project of positivism, insofar as he wishes to show that there are in-
stitutional principles of common law adjudication, which provide
factual criteria for determining which decisions a judge can properly
generate as part of the law, on the basis of existing doctrinal and so-
cial propositions (3, 160).
These institutional principles are designed to govern the selec-
tion of social propositions which can properly enter into common
law argumentation, as well as their interplay with doctrinal proposi-
tions in the modes of legal reasoning which characterize the crea-
tion, modification, and abrogation of common law rules. They thus
are meant to provide criteria which any proposed rule must meet if
it is to be incorporated into the common law in a judicial decision.
The obligation of the judge to employ these criteria (3, 160) is to pro-
vide the control which doctrinal propositions alone cannot ensure,
and to secure the legitimacy of judicial decision-making.
By setting out to develop what is in fact a complex rule of recog-
nition26 for common law rules, Eisenberg undertakes a task which
for the civil law would have to be carried out by a theory of inter-
pretation for canonical legal texts. In either case the relevant insti-
tutional principles have to cover the transition from necessarily
insufficient pre-existing doctrinal propositions to more concrete
23. This is pointed out by F. Schauer, "The Jurisprudence of Reasons," 85 Mich.

L. Rev. 847, 860 n. 40 (1987).
24. Eisenberg cites (163 n. 1) J. Bell, Policy Arguments in Judicial Decisions
(1983) and J. Raz, The Authority of Law (1979).
25. Eisenberg cites (163 n. 2) R. Sartorius, Individual Conduct and Social Norms
181-210 (1975) and earlier articles by the same author.
26. The concept was developed by Hart, supra n. 18, at 92ff.; it resembles Kel-
sen's concept of the basic norm (Grundnorm) of a legal system. Hart acknowledges
the parallel and elaborates on the differences between the two at 245f.
rules which can serve as bases for deciding individual cases.27
III
Since social propositions play a pervasive role in common law
reasoning (2f., 75f.), the criteria that they must satisfy if they are to
figure properly in that process are of central importance. As Eisen-
berg formulates them, the principles governing the use of all three
types of social propositions are largely parallel. In order to be con-
sidered, moral norms must represent social morality, i.e. they must
be
"moral standards that claim to be rooted in aspirations for
the community as a whole, and that, on the basis of an ap-
propriate methodology, can fairly be said to have substan-
tial support in the community, can be derived from norms
that have such support, or appear as if they would have
such support" (15).
Policies must be those
"that claim to characterize a state of affairs as good for the
community as a whole, and that, on the basis of an appro-
priate methodology, can fairly be said to have substantial
support in the community, can be derived from policies that
have such support, or appear as if they would have such
support" (29).
The requisite support for experiential propositions differs some-
what, since these concern matters of expertise; so instead of depend-
ing on the support of the general community, they
"should be supported by (or be propositions the court be-
lieves would be supported by) the weight of informed opin-
ion28-including informed opinion of the courts themselves
in matters in which they are expert, such as the capacity of
fact finders" (40).
While he insists that the determination whether such criteria
are met is an empirical judgment (18, 31), Eisenberg is the first to
admit that it usually cannot be ascertained as a practical matter
whether the requisite support truly exists, particularly in the case of
moral norms and policies (18, 30f.). Therefore, it is very much the
judgment of the court that matters, and this judgment is normally
27. See J. Stone, Legal Systems and Lawyers' Reasonings 55 (1968); Koch &
Russmann, supra n. 12, at 22ff.
28. Cf. the similar characterization of "generally accepted opinions," which can
properly serve as a basis for dialectical reasoning, in Aristotle, Topica lOOb18 (tr.
E.S. Forster): "those which commend themselves to all or the majority or to the
wise-that is, to all of the wise or to the majority or to the most famous and distin-
guished of them."
not testable (18). This becomes particularly important in cases

where different moral norms, policies, and experiential propositions
collide, so that the court has to exercise an additional judgment as to
their relative weight (18f., 35, 40, 168 n. 6). As the author succinctly
puts it: "The process of rendering judgment cannot be rendered
judgment-free" (35).
Given the absence of any absolutely objective test, it becomes
extremely important that all these judgments are subject to the
"check of discourse" within the deciding court, in the legal profes-
sion, and in the wider community, a point which Eisenberg empha-
sizes repeatedly (28, 31, 40f.). Since this point is also relevant for the
other institutional principles of common law which he develops, and
since it is also of particular interest from a comparative perspective,
we will discuss it further in a separate section.29
In a civil law context, social norms or policies which figure in
judicial arguments will usually be embedded in relevant legislative
texts. Eisenberg suggests that in such situations, different institu-
tional principles may apply, that the courts normally must account
for such propositions even if they do not have the otherwise requi-
site support at the time of the decision (16, 29). This appears some-
what problematic, and so the tentative formulation of the suggestion
is appropriate. If there were indeed no support for the embedded
moral or policy value, problems of desuetude or constitutionality
would likely arise; in less extreme cases, the value would be subject
to reinterpretation in light of changed social norms. Thus it would
have to be accounted for only in the sense that it could not be set
aside or modified without some argument; but it could not retain its
determinative force without significant support. The continued
existence of the canonical text embodying the value may be prima
facie evidence of such support, but cannot be dispositive. A good ex-
ample of this is provided by the refusal of German courts to apply
the principle "Mark equals Mark" to the obligations of debtors in a
time of hyper-inflation, in spite of the fact that the legislature had
failed to repeal the principle.30
IV
Once social propositions have been determined to be proper
components of common law reasoning, how are they to interact with
doctrinal propositions? To answer this question, Eisenberg develops
standards for the common law which in fact bear close resemblance
to standards also relevant in civil law systems. He first distinguishes
29. See infra sec. VII.

30. See B. Ruthers, Die unbegrenzte Auslegung 64ff. (2nd ed. 1973); Dawson,
supra n. 3, at 465ff.
two coherence requirements, the ideal of social congruence, which

tests rules by assessing their compatibility with the integrated en-
semble of all applicable social propositions, and the ideal of systemic
consistency, which requires that every rule coheres with all others
in a unified whole (44). The ideas that the law ought to serve impor-
tant values, and that it ought to form a consistent system, are as
deeply embedded in the civil law as they are in the common law.
Traditional theories of interpretation in the civil law, such as that of
Savigny,31 reflect this by acknowledging teleological and systematic
modes of interpretation,32 and appeals to the equity and systematic
unity of the law also characterize Justinian's Corpus luris, which
stands at the beginning of the development of European civil law.33
Eisenberg points out the parallels between social congruence and
systemic consistency on the one hand, and legitimating notions of
substantive and formal rationality on the other (44).34 And the par-
allels can be pursued even further back in time when we consider
the distinction between equitable and legal justice in Aristotle's
Nicomachean Ethics,35 and the discussion of arguments from higher
law and from conflicting laws in his Rhetoric.36 While "higher law"
was conceived as a form of natural law rather than as social moral-
ity, the practical effect of such arguments was to appeal to the latter,
especially given the composition of Athenian courts at the time37;
and arguments from conflicting laws were aimed at restoring the co-
herence which seemed disturbed by apparently contradictory
rules.38 These basic patterns of argumentation thus predate as well
as transcend distinctions between civil and common law. And they
permeate the professional discourse of both systems. Systemic con-
sistency is becoming more and more important as a topic of legal ar-
gumentation, as questions of constitutionality and compatibility with
international law form an increasing part of daily legal practice on
both sides of the Atlantic; and concerns of social congruence do not
only influence the construction of purposes which aid in the inter-
31. On Savigny's theory of interpretation see Kriele, supra n. 12, at 67ff.

32. These can also be found in Blackstone's theory of interpretation, which was
heavily influenced by civilian writers, see W. Blackstone, Commentaries on the Laws
of England, Vol. I 58ff. (1765).
33. See Dawson, supra n. 3, at 122ff.; Merryman, supra n. 2, at 6ff.
34. On substantive and formal rationality in law see M. Weber, Rechtssoziologie
307ff., 331ff. (J. Winckelmann ed., 2nd ed. 1967); on concepts of ideological and struc-
tural legitimacy which can be seen as parallels to social congruence and systemic
consistency, see D. Easton, A Systems Analysis of Political Life 289ff. (1965).
35. See Aristotle, Nichomachean Ethics 1137a 31.
36. See Aristotle, Rhetoric 1375a 26, 1375b 8.
37. Cf. D.M. MacDowell, The Law in Classical Athens 36ff. (1978): cases were
decided by very large jury-like bodies of citizens; we hear of sizes of 201, 500, 700,
1000, 1500, 2000, or even 6000.
38. For an extended overview of the argumentative techniques developed in this
context see Quintilian, Institutio Oratoria 7.7.
pretation of legislative texts, but also inform the frequent use of

consequentialist arguments as a form of result control.39
It is an important insight that the determination of systemic
consistency is not merely a matter of logic, but depends on social
propositions which determine whether there is a justification for an
exception to a rule (44f., 65). It could be argued that this is true
even of weak systemic consistency, i.e. in cases where the distinction
is only justified by traditional doctrinal differentiations rather than
by substantive social propositions (45); because even in those cases,
there must be significant social support for the notion that it is
worthwhile to maintain certain distinctions in spite of some social
discomfort, a kind of formal social support. And one could go fur-
ther yet in pointing out that even judgments of logical consistency
depend on social support insofar as the applicable logical standards
must be derived from rhetorically persuasive forms of reasoning.40
The parallels between common law and civil law continue when
we consider the third standard which Eisenberg adds to social con-
gruence and systemic consistency, namely the standard of doctrinal
stability (47). While the principle of stare decisis does not have the
same formal status in civil law systems as it does in the common
law,41 the recognition of the normative force of the actual42 is as im-
portant for a realistic understanding of the former as it is for a real-
world model of the latter.43 Commentaries on civil law codes are re-
plete with string citations showing continuous judicial support for
certain doctrinal propositions, and paralleling or contrasting it with
the dominant opinion in the scholarly literature,44 the latter being a
continuation of the medieval topos of the communis opinio
doctorum,45 which in turn one could trace, somewhat maliciously, to
the Roman imperial laws of citation, which weighted and counted
juristic opinions to resolve controversies.46 And again Aristotle's
Rhetoric may be cited: even though the Greece of his day did not
know professional jurists or regular collections of judicial decisions,
39. See MacCormick, supra n. 18, at 129ff.; N. Luhmann, Rechtssystem und

Rechtsdogmatik 29ff. (1974); Koch & Russmann, supra n. 12, at 227ff.
40. Cf. Neumann, supra n. 13, at 33, who emphasizes the primacy of standards of
rational argumentation in relation to theorems of logic.
41. For an overview of some limited statutory recognitions of the bindingness of
precedents see Koch & Russmann, supra n. 12, at 187; the French situation is re-
viewed in Dawson, supra n. 3, at 403ff.
42. This concept can be traced to G. Jellinek, Allgemeine Staatslehre 337ff. (3rd
ed. 1921) ("Normativitdt des Faktischen").
43. See supra n. 10; see also Dawson, supra n. 3, at 416ff., 495ff.
44. Cf. R. Zimmermann, Die Relevanz einer herrschenden Meinung fu'r die
Anwendung, Fortbildung und Erforschung des Rechts (1983).
45. See Dawson, supra n. 3, at 138ff.
46. On the Roman Law of citations of A.D. 426 see B. Nicholas, An Introduction
to Roman Law 37 (1962).
arguments from prior cases are among the available means of foren-
sic persuasion which he discusses.47
In traditional civil law interpretation theories, the element of
doctrinal stability is represented by the notions of grammatical and
historical interpretation,48 which tend to focus on the meaning of
the text as it was initially conceived, and are thus more inimical to
adaptive change than teleological and systematic interpretation.
That the contrast is, however, by no means absolute is well illus-
trated by the uses of history in constitutional interpretation in the
United States: change can be brought about by reinterpretations of
history.49 The same ambiguity affects the notion of doctrinal stabil-
ity, since the content of the original doctrine may be reinterpreted
in a similar fashion.50
While Eisenberg juxtaposes the coherence standard as based on
social propositions with the stability standard as giving a major role
to doctrinal propositions (47), it might be argued that the special
standards of the legal system which this role reflects must, in turn,
be justifiable in terms of applicable social propositions if it is to be
maintained. Similarly as in the case of weak systemic consistency,
there must be at least a formal approval of the cleavage between
general social and special legal standards, presumably based on the
assumption that the latter serve some long-term social good. Thus,
in the last analysis there must be some social support for a legal pol-
icy which trades off some short-term satisfaction for greater long-
term stability.51
V
The core of The Nature of the Common Law is formed by Eisen-
berg's detailed and perceptive examination of the modes of legal rea-
soning employed in the common law, including overruling and other
modes of overturning (50-145). Because the author builds his theo-
retical conclusions on a strong descriptive foundation, he achieves a
successful synthesis of practical realism and systematic rigor. For
47. See Aristotle, Rhetoric 1376a 8; Aristotle does not specifically refer to legal
cases here, but generally to authoritative pronouncements on disputed points.
48. See supra n. 31.
49. See C.A. Miller, The Supreme Court and the Uses of History (1969); this issue
has attracted particular attention in the context of the recent debate about constitu-
tional interpretation, see e.g. C. Wolfe, The Rise of Modern Judicial Review (1986)
and H.J. Powell, "The Modern Misunderstanding of Original Intent," 54 U. Chi. L.
Rev. 693 (1987).
50. See Eisenberg's discussion (58-61) of Cardozo's treatment of relevant New
York precedents in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050
(1916).
51. Eisenberg recognizes this when he states that "consistency with past institu-
tional decisions has only limited value for its own sake; it has substantial value only
if it serves some fairness or policy goal" (144).
the reader approaching the book from a comparative legal perspec-

tive, this has several significant advantages: a lawyer trained in the
civil law tradition will find here not only an overview of techniques
of common law reasoning which manages to be both concise and
comprehensive, but also an account of judicial reasoning centered
around precedent which probably is largely applicable to the work
of civil law judges as well. Since the systematic study of judicial rea-
soning has been on the whole a rather neglected field in civil law
countries,52 Eisenberg's book can provide encouragement and impor-
tant elements of the theoretical framework for such studies, because
it shows that the subject is amenable to systematic treatment and is
importantly linked to the conceptual foundations of the interpreta-
tion of canonical legislative texts as well. While he does not strongly
focus on these links himself, Eisenberg helps to make them more
apparent, not only by extracting from the wealth of case material
the fundamental patterns of common law reasoning about prece-
dent, but also by exploring the important structural parallels which
connect these patterns with each other. Once one sees that the dif-
ferent forms of judicial argumentation "are often highly comparable
in substance," (50) one can extend this insight to the underlying
general modes of reasoning, and from there also to interpretation
models current in the civil law.
The principal modes of argumentation which Eisenberg ex-
plores are reasoning from precedent, reasoning from principle, rea-
soning by analogy, reasoning from doctrines established in the
professional literature, and reasoning from hypotheticals (50-103). A
civil lawyer will immediately recognize these as familiar forms of
reasoning used in civil law systems as well. Moreover, substantially
the same list of argumentative approaches can already be found in
the tradition of accounts of legal argumentation exemplified by Aris-
totle's Rhetoric.53 This is significant not so much because it illus-
trates that "there is nothing new under the sun,"54 but because it
points to the underlying basic forms of all non-demonstrative argu-
mentation, whose study began in the same tradition. We encounter
here in various combinations aspects of deduction, induction, anal-
ogy, example, and authority which Aristotle identified as fundamern-
52. See Neumann, supra n. 13, at 112ff. on the relatively rudimentary state of
systematic empirical analyses of legal argumentation.
53. While Aristotle's own treatment of legal argumentation remains rather
sketchy (Rhetoric 1375a 22ff.), Quintilian's Institutio Oratoria provides a more fully
developed overview, which covers precedents (5.2), the use of principles and analo-
gies to restrict or extend legal norms (5.11.32f., 7.6, 7.8), uses of authorities in general
(5.11.36ff.) and of the legal literature in particular (12.3) (Quintilian's opinion of
legal experts is tinged by professional rivalry), and hypotheticals (5.10.95ff.).
54. Ecclesiastes 1.9.
tal elements of rational persuasion.55

What links these elements is that they are aimed at establishing
and supporting a major premise which can justify a conclusion about
the problem at issue in the argument, whose definition essentially
forms the minor premise in the overall syllogistic structure. And
this structure is, of course, also the basic pattern of all legal argu-
mentation, which subsumes a case under a rule in justifying a deci-
sion. The shortcoming of purely deductive models of legal
reasoning, of "mechanical jurisprudence,"56 lay not in the identifica-
tion of this pattern, but in the mistaken assumption that the re-
quired premises completely pre-existed the process of decision-
making, while in fact their substantial formation is an essential part
of that process.57
By strongly emphasizing that the generation of generalizable
rules is a core element of the common law process, Eisenberg pro-
vides an important corrective to a view which characterizes common
law reasoning as proceeding by example from case to case. Eisen-
berg's critique of Edward H. Levi's central argument in his Introduc-
tion to Legal Reasoning58 (84-87) is particularly significant, because
that conception may have shaped the view many civil lawyers have
of the common law.59 And it may be surmised that the sense of an
essentially intuitive and somewhat random process which this book
appears to suggest has not been helpful in motivating scholars to un-
dertake thorough explorations, with systematic intent, of judicial
reasoning centered on precedent, be it in the common or in the civil
law. One need not accept the mistaken notion that legal decision-
making is determined by rules in order to recognize the importance
of rules in the arguments offered in the process of justifying legal
55. Reasoning from precedent and principle are forms of deductive reasoning,
which fall into Aristotle's rhetorical category of the enthymeme (Rhetoric 1356b
1ff.); reasoning by analogy corresponds to Aristotle's rhetorical category of the ex-
ample, which also covers the process by which a doctrinal proposition is derived
from a number of similar cases (Rhetoric 1356b 13f.), and which is the equivalent of
induction in dialectics; an authority recognized by the audience can be a source for
opinions which may form premisses for rhetorical syllogisms (Rhetoric 1396a 1).
56. See R. Pound, "Mechanical Jurisprudence," 8 Col. L. Rev. 605 (1908); see also
supra n. 3; on the reactions of G6ny and the German Freirechtsschule see Stone,
supra n. 27, at 212ff., 227ff.; on connections between the Freirechtsschule and Ameri-
can legal realism see J.E. Herget & S. Wallace, "The German Free Law Movement
as the Source of American Legal Realism," 73 Va. L. Rev. 399 (1987).
57. For a treatment of legal argumentation which aims to "rehabilitate" the de-
ductive model see Koch & Russmann, supra n. 12, at 14ff.; for a critical evaluation of
such efforts see Neumann, supra n. 13, at 16ff.
58. See Levi, supra n. 19.
59. See e.g. J. Esser, Grundsatz und Norm in der 7ichterlichen Fortbildung des
Privatrechts (2nd ed. 1964), whose analysis of "'Principle and Rule' in Case Law"
(chapter X, at 183ff.) cites Levi as a source to be considered "above all" (vor allem)
in snnroachin_ the concent of "legal reasoning" (at 184 n. 187).
decisions.60 Surely rules are not everything, but neither are they
nothing.
The parallel logical structure of different modes of legal reason-
ing is well identified by Eisenberg when he points out that
"[e]ssentially, reasoning by analogy in the common law is a special
type of reasoning from standards, like reasoning from precedent and
from principle" (87). But while he recognizes the similarity between
analogy and reasoning from hypotheticals as well, he feels that the
latter "differs in substance from both reasoning by analogy and the
other modes of reasoning previously considered [i.e. precedent and
principle]," because it "depends on an interplay between applicable
social propositions and conceivable [rather than actual] doctrinal
propositions and cases" (102). But one may doubt this assessment
insofar as in both major categories of reasoning from hypotheticals,
in which the object is to show either "that a rule should be adopted
because the case cannot be distinguished from hypotheticals in
which the rule seems clearly proper," or "that a rule should be re-
jected because the case cannot be distinguished from hypotheticals
in which the rule seems clearly improper," (101) the claim is that
the decision in the hypothetical case is so obviously predictable and
beyond doubt that in substance it is already part of the law. Eisen-
berg himself defines the common law as consisting "of the rules that
would be generated at the present moment by application of the in-
stitutional principles of adjudication," (154) and what the deciding
court does in using hypothetical reasoning is precisely to generate
such a rule for the hypothetical case, from which then a rule for the
actual case can be derived by analogy or its denial. Thus the rule
applicable to the hypothetical only lacks formal recognition, which,
however, the deciding court treats as a matter of course, and in fact
indirectly bestows in developing the hypothetical argument.61
Reasoning from precedent is clearly the central argumentative
mode of the common law. It converges with the interpretation of ca-
nonical legislative texts, at the core of civil law argumentation, not
only because both are reasoning from standards, and because usually
civil law norms come to a court with a gloss of scholarly and judicial
60. On the distinction between the process of discovery and the process of justifi-
cation see R.A. Wasserstrom, The Judicial Decision 25ff. (1961); for a similar distinc-
tion between creation (Herstellung) and presentation (Darstellung) of a decision see
N. Luhmann, Recht und Automation in der 6ffentlichen Verwaltung 51ff. (1966).
61. While technically courts are not supposed to give "advisory opinions," in fact
judges may give strong indications how they would decide a case other than the one
before them, in order to discourage or encourage litigation. Thus a number of re-
marks in opinions in Poe v. Ullman, 367 U.S. 497 (1961) helped to prepare Griswold
v. Connecticut, 381 U.S. 479 (1965), and indications in Jones v. Opelika, 316 U.S. 584
(1942) paved the way for West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943).
commentary,62 but also because even in a case of first impression the

civil law judge has to approach a norm text much as a common law
judge deals with a precedent. Eisenberg observes "that the various
approaches to establishing the rule of a precedent are not so much
theories as techniques," (61) which the deciding court uses "not so
much to determine what the precedent was intended to stand for as
to determine what it has or will come to stand for," and he suggests
to call this process "establishing the rule of a precedent," (52) rather
than interpretation, because a deciding court can use these tech-
niques not only to apply the rule of a precedent to a case that falls
within its stated ambit, but also to extend it to cases outside that am-
bit, or to modify the rule so as to exclude from its ambit a case
which would have been covered by the original statement of the rule
(64). And in Eisenberg's view, "It would be a strange kind of inter-
pretation that allowed the interpreter to reformulate or radically re-
construct the text, and that is just the power of a deciding court in
dealing with a precedent" (52). But that is in fact also the power
which techniques developed in civil law theories of interpretation of-
fer the judge, who may choose, as does her common law colleague,
between liberal application and extensive or restrictive interpreta-
tions of a prior rule.63 And critics of such theories have long pointed
out that in the absence of precise rules as to when which of the dif-
ferent modes of interpretation is to be used, the judge is in fact in-
vited to construct rather more than construe the norm text, to
engage in "unlimited interpretation."64
While he quite purposefully limits the scope of his book to com-
mon law reasoning, (vii) Eisenberg is mindful of the potential paral-
lels between his theory and the institutional principles which could
be said to govern the interpretation of canonical legal texts such as
statutes and constitutions (196 n. 35). And apart from similar tech-
niques for the treatment of the underlying authoritative materials,
these parallels include the need for a principle which addresses the
choice between such techniques where they point in different direc-
tions (61). The criterion which Eisenberg proposes is that
"[t]he announced rule of a precedent should be applied and
extended to new cases if the rule substantially satisfies the
62. The parallel between the activities of civil law and common law judges is
pointed out by Merryman, supra n. 2 at 43; see also infra text after n. 64.
63. For a discussion of the treatment of this complex in ancient rhetorical theory
see U. Wesel, Rhetorische Statuslehre und Gesetzesauslegung der r6mischen Juristen
42ff. (1967).
64. This is the title of the book by Ruthers, supra n. 30. On the problem of a
hierarchy of interpretive techniques see J. Esser, Vorverstandnis und Methodenwahl
in der Rechtsfindung 122ff. (1970); Kriele, supra n. 12, at 85ff.; Alexy, supra n. 12, at
288ff.
standard of social congruence65 and a failure to apply or ex-

tend the rule of a new case would not be justified by appli-
cable social propositions, given the social propositions that
support the rule" (75).
By requiring that a rule should be followed and extended as long as
it "substantially" satisfies the standard of social congruence, this cri-
terion is meant to give substantive effect to the principle of doctrinal
stability and the principle that a precedent is binding (74); another
rule, even though marginally better, should not be preferred to the
established precedent (75). Thus a somewhat heavier burden of per-
suasion is put on the proponents of a new rule: they must show that
it is not merely better, but substantially better than the old one.66 It
is interesting that in a rare civilian sketch of a comparable princi-
ple67 there is no such proviso; this may be explained by the absence
of a general notion of stare decisis in the civil law system. But this
difference should not be overemphasized: a civil law court will still
hesitate to deviate from an established line of cases, and a common
law court cannot be said to be decisively restrained by the substanti-
ality requirement. The assessment of the weight of reasons for and
against a change, like any determination of social propositions, will
clearly require a considerable degree of judgment on the part of the
courts, which also implies some leeway, subject primarily to the
check of discourse.68
That is also true of the application of the principles governing
overruling, which Eisenberg discusses subsequently, (104-127) and
which form a mirror image of the criteria for applying and ex-
tending precedents: the "basic overruling principle" requires that
"[a] doctrine should be overruled if (i) it substantially fails
to satisfy the standards of social congruence and systemic
consistency, and (ii) the values that underlie the standard of
doctrinal stability and the principle of stare decisis-the
values of evenhandedness, protecting justified reliance,
preventing unfair surprise, replicability, and support-
would be no better served by the preservation of a doctrine
than by its overruling" (104f.).
A second overruling principle applies to cases in areas where "plan-
ning on the basis of the law is common, certainty is particularly im-
65. Eisenberg here collapses the standard of systemic consistency into that of so-
cial congruence, "[s]ince systemic consistency usually depends on social congruence"
(75).
66. The maintenance of a higher burden of proof on those who propose to devi-
ate from a rule in favor of particularized reasons is also a concern expressed by
Schauer, supra n. 23, at 862, 869.
67. See Koch & Russmann, supra n. 12, at 373ff.
68. See supra sec. III and infra sec. VII.
portant, and justified reliance is very likely" (122). Here the

decisions to overrule should be made
"if, but only if, the advantages of making the legal rule so-
cially congruent and systemically consistent outweigh the
costs of not serving the values that underlie doctrinal stabil-
ity and stare decisis" (122).
Not only are the judgments which courts have to make in em-
ploying such principles again very complex and essentially untest-
able, but the restrictive force of these criteria is also further
lessened by the availability of a number of techniques short of im-
mediate and complete overruling, ranging from prospective overrul-
ing69 over signaling, transformation, and overriding to the drawing
of inconsistent distinctions. Eisenberg's detailed and incisive discus-
sion of these modes of overturning (122-124, 127-140) shows that
such forms of reasoning do more than merely express "a desire to
preserve the impression of doctrinal stability," and that even "[t]his
desire to maintain appearances is not necessarily manipulative"
(138) or inconsistent with a commitment to candor (139). But the
fact remains that courts can and do limit or extend the applicability
of prima facie applicable or inapplicable norms in a large variety of
ways, and that their use of the modes of reasoning which justify
such changes significantly eludes predictive control.
VI
Since the common law process requires such complex judg-
ments at every step-from the identification and interpretation of
foundational principles, over the determination and weighing of ap-
plicable social propositions, to the assessment of the social congru-
ence and systemic consistency of doctrinal propositions, and the
adjustment between these requirements as well as the demands of
doctrinal stability, which is effected through the choice between dif-
ferent modes of legal reasoning and overturning-it is not surprising
that one of the points which Eisenberg emphasizes in his concluding
chapter is "the uncertain nature of the common law" (157-159). He
states quite clearly that these key judgments all concern "matters
on which certainty is not possible," and that consequently among
common law rules "few if any are completely certain" (157). He also
shows that legal rules need not be certain to make planning possible
(157f.), and that the idea of the rule of law does not require that the
law consist of fixed previously existing substantive rules (158f.).
Since judgment is such a pervasive feature of the common law,
69. Given the considerable attention paid to this technique by civilian scholars,
Eisenberg's reminder that it "is used in only a very small fraction of overturnings"
(132) may be useful.
it would thus be wrong to assume "that courts simply 'find' or 'dis-

cover' the law" (193 n. 74). And in discussing "replicability" as one
of the foundational principles of the common law (10-12), Eisenberg
likewise concedes that the use of a replicable process of reasoning,
while serving the end of predictability, "does not assure predictabil-
ity. Judicial decision making involves judgments of various sorts,
and since the judgments of any two persons may differ, complete
predictability cannot be attained" (12).70
Therefore it is surprising that Eisenberg repeatedly asserts that
courts should not rely on those moral standards they think best (16),
that judges should not generally follow their personal morality (22-
24) or act on their personal convictions (142f.), that they may not es-
tablish legal rules on the basis of the moral norms and policies they
think best (149-151), and that considerations of critical morality and
right policy should not affect the determination of what the common
law is (161f.). While a legislature may decide to alter existing social
standards, a court must reason from rules which are "supported by
the general standards of the society or the special standards of the
legal system. In this respect a court differs from a legislature, which
can appropriately adopt legal rules that do not have such support"
(9).
But upon closer analysis it would appear impossible to eliminate
personal values from judicial decision-making. Even if a judge rec-
ognizes a clear conflict between personal preferences and socially
supported moral norms, the decision to set aside the former in favor
of the latter inevitably implies the necessarily personal moral judg-
ment that these social norms do not violate the inalienable core of
the judge's ethical convictions. Eisenberg recognizes that in very ex-
treme cases a judge may be morally justified in making a decision
contrary to the law (26); but then presumably the judge will in such
cases still present the decision as required by the law, since other-
wise it would have a much smaller chance of acceptance, and the re-
quired deception will be justified by the overriding necessity of
avoiding a morally indefensible outcome. Consequently the judge's
decision not to let individual moral values influence the presentation
of what the law is in other cases requires at least a tacit personal
judgment that the resulting violation of the judge's moral convic-
tions is not sufficiently extreme to warrant such a step. Just as the
application of the announced rule of a precedent implies the tacit
judgment that the rule is either socially congruent, or that overrul-
ing it would not be justified by applicable social propositions (76), so
a judge's obedience to such social standards in presenting the appli-
cable law implies the tacit judgment that the rule to be announced is
70. See also supra sec. III.
either personally congruent, or that transforming it would not be

justified by applicable personal norms.
As Eisenberg correctly observes, the problem of extreme cases
is not apt to be pressing "in the real life of the common law" (25).
What is pressing is the problem of determining and weighing the ap-
plicable social and doctrinal propositions, and if indeed the judg-
ments which this requires cannot be predicted, since the judgments
of any two persons may differ, (12) then the question arises on what
basis these differences can be explained if not on the basis of per-
sonal factors. When two judges disagree on the outcome of a case,
they both have at their disposal essentially the same information
about the dispute at hand and the relevant doctrinal and social pro-
positions. If we assume, as Eisenberg apparently does, that disagree-
ment in such cases can be legitimate, the ultimate reason for that
disagreement must lie in the judges' differing personal values.
Indeed, if under the conditions of empirical uncertainty, which
are characteristic of the process of determining applicable social pro-
positions, judges could not fall back on their personal values, they
could not make any decision at all, and would thus violate the re-
quirement that the common law must be "comprehensive," that
there must be "a legal answer to every question that takes the form,
'What is the law concerning this matter?'" (159). And that require-
ment is as essential a part of the common law systems as it is of the
common law.71 If therefore a court is confronted with a situation in
which empirical tests do not allow a clear decision which of two
competing versions of a common law rule or of the interpretation of
a canonical legal text is more socially congruent, then the court
must choose the version which is more congruent with the court's
moral standards. As Eisenberg correctly points out, a judge is apt to
think that "his own convictions are the convictions that the best mo-
rality would require," (194 n. 82) which means that he must think
that the best reasons speak for them, since otherwise it would be ir-
rational to adhere to them. And furthermore, this allows the judge
to believe that the version he chooses is likely to have or to obtain
social support, thus fulfilling certain elaborated criteria of social
support for moral propositions (17). A contrary belief would have to
be based on the rather pessimistic assumption that society is never
impressed by good reasons, and it would contradict the notion that
the courts can successfully exercise moral leadership (19). There is,
of course, the possibility that the judge's belief may be wrong, but it
would be perverse to require a judge to commit a certain violation of
personal norms to avoid a possible violation of social norms, espe-
71. See e.g. Article 4 of the French Code Civil.
cially since in that case the possibility remains that actually both
sets of norms will be violated.
Since Eisenberg assures us that the assumption that judges es-
tablish legal rules and determine outcomes according to personal
convictions "describes neither what judges claim to do, what they ac-
tually do, nor what they should do," (143) but since we also know of
Holmesian "can't helps" and are told by Cardozo that "[t]he training
of the judge, if coupled with what is styled the judicial tempera-
ment, will help in some degree to emancipate him from the sugges-
tive power of individual dislikes and prepossessions. It will help to
broaden the group to which his subconscious loyalties are due.
Never will these loyalties be utterly extinguished while human na-
ture is what it is,"72 and since, furthermore, we have just seen that
under conditions of uncertainty some reliance on personal standards
is inevitable, we must assume that the prohibition on the use of indi-
vidual norms needs to be limited to purely idiosyncratic preferences.
But then the training and selection of judges will likely elimi-
nate these anyway, and a judge will be well advised to restrain re-
maining ones for purely prudential reasons, since a decision based
on them would not likely prevail in practice. If, on the other hand,
the judge sees some chance that an unusual view, while not yet pre-
dominant, could represent an emerging social norm which will soon
attract substantial social support-a possibility for which Eisenberg
allows, assuming that the judge is ready to pull back if that belief
proves incorrect (17)-then the judge's individual convictions must
again play an important part: the personal evaluation of the
strength of the moral position in question will influence the assess-
ment of how clear the initial traces of emerging social support need
to be, how soon how much additional support has to be forthcoming,
and how long the judge may endeavor to garner further approval
before the effort must be abandoned.
The realities of the selection process for judges in the civil as
well as in the common law world suggest that whatever we might
desire judges to do in theory, we know that in practice their per-
sonal values do and must play a part in their decisions.73 The con-
trast between judges and legislators is in this respect by no means as
strong as it might initially appear. Since legislators are representa-
tives of the people, they are also morally bound to consider social
norms in making their decisions. They are by no means free to dis-
regard generally held views in favor of purely idiosyncratic prefer-
72. Cardozo, supra n. 5, at 176.

73. For an overview of the selection processes for state and federal judges in the
U.S. see H.J. Abraham, The Judicial Process 22ff. (5th ed. 1986); for a discussion of
court staffing in civil law countries see Shapiro, supra n. 1, at 150ff.
ences, but must always be able to argue that any deviation from
current popular desires is justified by long-term gains for the com-
mon good, or by requirements of a higher social morality to which
the electorate ultimately remains committed. The real test of the
appropriateness of a change, be it legislative or judicial, cannot lie in
an advance determination of whether it is based on institutional
principles or personal values, but only in the retroactive assessment
and control exercised in a process which Eisenberg aptly calls the
"check of discourse." This process must determine whether the pro-
jection of critical morality and right policy, which is implied in the
decision to make a change, can attract the degree of social support
which is required if the change is to succeed.
VII
The "check of discourse" is necessary because the institutional
principles governing the process of generating the common law do
not provide monologically testable criteria. Thus, if these principles
are to exercise true normative control over the actions of judges,
their application by judges must be controlled by others, even as
judges themselves must ensure that legal rules do not merely obey
those who are meant to obey the rules. The guardians are guarded
by those they guard.74 In recognizing the central role of discourse in
the process which aims at separating mere assertions about the law
from warranted claims, Eisenberg develops for the common law a
perspective similar to views which have been gaining increasing cur-
rency in the literature on legal reasoning in the civil law as well.
For all their considerable differences, these views share the insight
that legal argumentation cannot be evaluated by abstract formal cri-
teria, but must prove itself through its ability to win the assent of an
audience in a process of discourse.75
This development in legal theory is part of a larger philosophi-
cal movement away from dichotomies between demonstrable knowl-
edge and idiosyncratic opinion, and towards criteria of truth which
do not consign questions of value to the realm of irrational prefer-
ences.76 What keeps the pragmatism of such process- and audience-
74. This is the answer, in a democracy, to Juvenal's famous question "Sed quis
custodiet ipsos custodes?" ("But who shall guard the guardians themselves?", Satires
6.347).
75. Cf. e.g. Alexy, supra n. 12, at 219ff.; Koch & Russmann, supra n. 12, at 363ff.;
Aarnio, supra n. 12, at 185ff.
76. Cf. e.g. C. Perelman & L. Olbrechts-Tyteca, Traite de lArgumentation. La
nouvelle rhetorique (2nd ed. 1970); S.E. Toulmin, The Uses of Argument (1958); J.
Rawls, A Theory of Justice (1971); J. Habermas, "Wahrheitstheorien," in Wir-
klichkeit und Reflexion. Festschrift fur Walter Schulz 211 (H. Fahrenbach ed. 1973);
W. Booth, Modern Dogma and the Rhetoric of Assent (1974); R. Nozick, Philosophi-
cal Explanations (1981).
centered criteria from collapsing into an uncritical celebration of

successful success, is the idea that the resulting assent must be qual-
ified, that it must be reached under more or less ideal conditions.77
In practical terms this means that any current consensus can be
questioned by an appeal to the prospect of a better qualified consen-
sus yet to come. Even then, the critic must seek the assent of a fu-
ture audience to the particular interpretation and application of
normative truth criteria which the criticism proposes, and thus can-
not escape the check of discourse.
But to the extent of its power over normative standards, this
discourse is not merely a negative check, but also has a positive gen-
erative force. In the case of the common law, the process of dis-
course does not only generate the substantive legal rules, but it also
regenerates the institutional principles under which it unfolds.
These principles are by their very nature even more in need of in-
terpretation than the more specific rules upon which they operate,
and they are subject to the same process of concretization, modifica-
tion, and abrogation. It seems safe to say that social support and
professional discourse did not play the same important role in the
common law process initially as they do today. We need only to
think of the traditional English rule, now abandoned, that living au-
thors should not be cited as authorities, or to compare the frequency
of references to the scholarly literature in American court opinions
before and after the Second World War, in order to realize that Ei-
senberg's emphasis on the profession as a participant in the process,
and the greater similarity to civil law systems which this entails, re-
flects relatively recent changes.78
If outright abrogation of such institutional principles appears
unlikely, this is largely due to the fact that they are sufficiently
commodious to encompass important changes in substance while
maintaining their outward form. The check of discourse cannot en-
sure that the principles are maintained without change, but only
that all change is tied to a broad consensus about its appropriate-
ness. The criteria which the principles contain are not so much
fixed measuring rods, but rather provide an argumentative frame-
77. Perelman & Olbrechts-Tyteca, supra n. 76, at 40ff. posit the construct of a
universal audience; Rawls, supra n. 76, at 17ff. develops the idea of an original posi-
tion; Habermas, supra n. 76, at 255ff. postulates an ideal speech situation. Perelman
is discussed by Alexy, supra n. 12, at 197ff., and by Aarnio, supra n. 12, at 221ff.;
Rawls is discussed by Koch & Russmann, supra n. 12, at 367f.; Habermas 's discussed
by Alexy, supra n. 12, at 134ff., by Koch & Russmann supra n. 12, at 367f., and by
Aarnio supra n. 12, at 231ff; the common features of such theories are emphasized by
Koch & Russmann, supra n. 12, at 363ff.
78. For a survey of the use of legal periodicals in United States Supreme Court
opinions see Abraham, supra n. 73, at 243ff. Insofar as Eisenberg clearly approves of
a greater role for the professional literature, he can be seen to advocate as well as
describe such developments.
work for discussing the required decisions and judgments which

have to be made in the process of generating the law. This frame-
work allows the participants to discuss a mixture of prudential and
moral considerations, assessing what already has support, as well as
what ought to have support, and what may have a chance to gain it.
Thus the framework governs the discussion, but is also governed by
it, because only in the discussion can the framework attain its con-
cretely applicable form.
The persuasive process which is at the core of the check of dis-
course does not merely reflect reality, but also reshapes it. In con-
troversial cases, where the balance of support is unclear, the courts
may by their support of one position over another help to tip the
balance in its favor. And a court's determination of what degree of
existing support and what chance for future success in how much
time suffice for a change cannot help but be influenced by a judg-
ment on the moral desirability of the contemplated decision, since
greater uncertainties and risks are acceptable when the possible
gains are higher.79 Nor are the courts the only actors who thus can
and must play an active role in shaping the law. Professional criti-
cism may indeed indicate a lack of support for a judicial decision
(112f.), but it can also influence that support; similarly scholarly ap-
proval can not only attest to correctness (139), but also help to make
a result correct. Insofar as judgments about law are moral judg-
ments involving genuine choices, our characterizations of such judg-
ments as correct are importantly generative characterizations. We
contribute arguments to an ongoing debate which continues to de-
termine standards of correctness. Our arguments are genuine argu-
ments, rather than failed demonstrations, precisely because they
cannot be assessed with certainty before and outside the debate it-
self.80 They prove themselves in their ability to engender consensus.
Consequently the check of discourse is not merely a linear chain of
control which measures existing support in successive stages from
courts to profession to wider public, but it consists of a complex of
reciprocal relationships in which persuasive interactions win, main-
tain, modify, and overturn support.
It is also very significant that reliable assessments of support for
initially controversial changes are made in retrospect, and thus can-
not abstract from the outcome of a process which could not have
79. On risk analysis see generally M.T. Douglas, Risk Acceptability According to
the Social Sciences (1985).
80. See Aristotle, Rhetoric 1357a 4ff.: 'The subjects of our deliberation are such
as seem to present us with alternative possibilities: about things that could not have
been, and cannot now or in the future be, other than they are, nobody who takes
them to be of this nature wastes his time in deliberation." (tr. W. Rhys Roberts).
been predicted beforehand.81 The persuasive effect of the argu-

ments accompanying the change, as well as the "normative force of
the actual" embodied in the success of the change itself cannot be
eliminated from the retroactive determination of what the situation
was, however little these factors themselves may have reflected that
initial situation. This further reminds us that social support is not
only the standard of the check of discourse, but also its object and
artifact.
VIII
The generative conception of the common law which Eisenberg
develops, with its emphasis on the responsiveness of courts to social
propositions and on the check of discourse, is illuminating to civil
lawyers precisely because it dispenses with a presupposition which
still distorts much civil law argumentation: that canonical texts
form the true foundation of legal reasoning. It is perhaps easier for
a common lawyer, dealing with an area of the law which is on the
whole less controversial (26), and standing in a tradition which is
not overly troubled by the notion that judges establish legal rules
(4ff.), to address with unaffected clarity and purposeful directness
the interactions between judicial and social processes which hold out
the promise of a more responsive law.82 But it may be hoped that
civil lawyers will recognize in Eisenberg's account of the common
law enough that is similar to their own legal experience to en-
courage them to take a fresh look at the civil law, a look less encum-
bered by traditional theoretical assumptions and political
nervousness. The Nature of the Common Law can thus provide not
only a better understanding of the common law, but also contribute
to a comparative perspective for a broader assessment of civil law
reasoning.
The common law system, particularly in the United States, has
been more comfortable with the idea of the judge as a visible and
vocal participant in public discourse, while the civil law has tended
to assign to the judiciary the role of a "silent power."83 Insofar as
81. See M.R. Kadish & S.H. Kadish, Discretion to Disobey 69f. (1973) on the
"retrospective fallacy" in the explanation of legal phenomena.
82. See generally P. Nonet & P. Selznick, Law and Society in Transition: To-
ward Responsive Law (1978).
83. This is the title of a book by R. Lautmann, Justiz-die stille Gewalt (1972), in
which the author describes and analyzes his experiences as a participant-observer
while serving as a judge on a West German court. On the political background for
this perception of the judicial role see e.g. Merryman, supra n. 2, at 15f., 35f. In
Montesquieu's famous phrase the judge is supposed to be only the mouth which
speaks the words of the law ("la bouche qui prononce les paroles de la loi," De
l'esprit des lois 11.6; it is somewhat ironic that this phrase appears in a chapter enti-
tled "Of the Constitution of England."
Eisenberg pinpoints the importance of the check of discourse for the

legitimation of the law, we are also reminded that such legitimation
presupposes a certain openness of the process; and in this respect a
comparative look at legal argumentation in the common and in the
civil law shows features of the former which contribute to openness,
and which the latter has begun to incorporate, but might do well to
pursue further. Once we see judicial pronouncements more clearly
as contributions to a debate, it becomes easier to recognize judicial
style as a form with strong substantive implications.
In its extreme manifestations, the deductive style practiced by
French appellate courts suggests a demonstration, which leaves no
room for further discussion and contributes no arguments to it. Ju-
dicial opinions in other civil law countries have gone a considerable
way towards a more discursive style with a more open consideration
of policy and social norms.84 But the openness of the debate is still
impaired by a number of factors which will be mentioned here only
briefly, but deserve further consideration. While civil law courts
generally pay more attention to differences of opinion in the legal
community, they still largely maintain the fiction that they are
speaking with one voice. Dissenting opinions are generally not per-
mitted; the few exceptions have been significantly inspired by the
American example.85 But dissents do not only help to gauge the
strength of the support a decision enjoys in the deciding court, they
also encourage and facilitate further debate, and they can prepare
later modifications and overturnings, thus lessening the element of
unfair surprise when change becomes necessary. Even unanimity is
more significant where dissent is possible.
The reluctance of civil law systems to think of courts as partici-
pants in an ongoing debate has also reduced the opportunities for
the public to make itself heard in judicial proceedings. While the
government is usually able to submit briefs in matters affecting the
public interest, private citizens can as a rule present their arguments
in cases affecting them only if they are immediate parties to the suit.
The commendable desire not to interfere unduly in the administra-
tion of justice also perhaps tends to inhibit vigorous public debate
beyond what is necessary for the preservation of judicial indepen-
dence. The observer who has witnessed controversies surrounding
court decisions on both sides of the Atlantic cannot fail to notice
that judges int he New World seem to be none the worse for being
84. The example of Sweden is particularly instructive in this context, since there
the change from the classical style, rather similar to the French approach, to a more
open modern style was quite pronounced: see Wetter, supra n. 8, at 79ff.
85. The West German Federal Constitutional Court (Bundesverfassungsgericht)
publishes dissenting opinions; on the general absence of the practice in civil law
countries see Merryman, supra n. 2, at 121f.
subject to rather more lively criticism than their European col-

leagues. It may be pointed out that harsher attacks also make for
stronger support.86
Lively debate is also encouraged by a judicial style which does
not always hide the fact that court opinions are written by individ-
ual human beings with a distinctive voice, rather than by a program-
med committee. Judicial training in civil law countries tends to
emphasize a rather faceless all-purpose style which imposes same-
ness as a desideratum, rather than merely as a consequence of the
attractions of imitation. Because judges are in fact individuals who
are able to make decisions precisely because they differ from others,
the image of a homogenous collective is a severe distortion of reality,
and a distortion which impairs the ability of the judicial system to
communicate with a wider public. Civil law opinions are regrettably
devoid of language which can crystallize public debate and enter
public consciousness on a wider scale. Civil law writers may note
the rather overtly "rhetorical" style of famous judges such as Car-
dozo,87 but they may not sufficiently recognize that such a style ex-
presses a legitimate desire to communicate and to persuade.88
Moreover, the blander civil law style has a rhetoric of its own, which
wishes to suggest that legal decisions flow from impersonal author-
ity and should be accepted on that basis alone. In this respect, close
study of examples of what Karl Llewellyn has called the "grand
style"89 could help civil lawyers to recognize that greater directness
need not entail terrible simplification, and that facile emotionalism
can be avoided without suppressing all passion.
Ix
Comparative law is not addressed directly in The Nature of the
Common Law, but nevertheless the book illustrates an important
function of comparative law, which gives an answer to those who
may wonder what comparative lawyers can do, beyond showing the
similarities and differences between legal rules in different coun-
tries, and using other jurisdictions as the legal equivalent of test lab-
oratories for potential new products.90 Eisenberg concludes his
discussion of reasoning from doctrines established in the profes-
sional literature (96-99) by pointing to the relative uniformity of tort
86. This is illustrated by the school desegregation and abortion decisions of the
United States Supreme Court.
87. See e.g. Esser, supra n. 59, at 54 n. 174.
88. On judicial style as persuasion see R. Posner, Law and Literature 270ff.
(1988).
89. See K. Llewellyn, The Common Law Tradition (1960).
90. See Shapiro, supra n. 1, at vii.
law in the United States,9' and by supporting his approval of that

uniformity with the argument that
"[t]he concept that otherwise equivalent transactions can
properly be given different treatment simply because they
occur on either side of a state boundary is in a sense simply
one more deep doctrinal distinction, unsupported in the
present day by the standard of social congruence except
where applicable social propositions themselves differ from
state to state" (99).
The very same argument can also be made for transactions which
occur on either side of a national border, and thus comparative law
can make an important contribution to the discourse which assesses
legal problems and solutions.
The fact that a decision under discussion has been adopted or
rejected in other countries tends to strengthen or weaken the case
for that decision. It imposes a certain burden of persuasion on the
opponents or proponents of the proposal to show significant differ-
ences between the jurisdictions concerned.92 Thus comparative stud-
ies can provide a broader basis of legitimacy for the law by widening
the scope and increasing the depth of the discussion which is part of
the process of generating law. It is therefore significant that the
trend toward greater uniformity in tort law has not been limited to
the United States, but can also be observed on a larger scale. Com-
parative studies have strongly contributed to such developments,
and they continue to perform a similar critical as well as justifica-
tory function in many other areas of law as well.93
While the influence of comparative studies on the legal debate
has been strongest in the area of private law, the criminal law has
not remained unaffected, as is shown in a particularly dramatic fash-
ion by the example of discussions of the death penalty which make
significant use of comparative arguments. That subject does of
course also illustrate the limits of such arguments.94 Nor have other
areas of public law remained unaffected by the need to consider ar-
guments from beyond the confines of domestic legal systems. Strik-
91. Here Eisenberg quotes M. Shapiro, "Decentralized Decision-Making in the

Law of Torts," in Political Decision-Making 50 (S. Ulmer ed. 1970).
92. A. Peczenik, Grundlagen der juristischen Argumentation 62 f. (1983) lists
foreign legal materials among the permissible sources of legal arguments in Swedish
law.
93. For a broad comparative overview of developments in different areas of the
law see W. Frie'dmann,Law in a Changing Society (2nd ed. 1972). The same author
notes the increasing convergence between common law and civil law in W. Fried-
mann, Legal Theory 549ff. (5th ed. 1967).
94. For a broad comparative overview of the death penalty see J. Gorecki, Capi-
tal Punishment (1983); cf. also the frequent comparative references in Voices
Against Death (P.E. Mackey ed. 1976).
ing examples of this can be found in decisions of the West German

Federal Constitutional Court (Bundesverfassungsgericht) which
echo Holmes and Brandeis on the "process of trial and error" pro-
tected by the freedom of speech, and the "right to be left alone."95
When the same court decided that a statute liberalizing abortions
was unconstitutional,96 the dissenters pointed to Roe v. Wade,97 and
the majority felt compelled to reply to this argument as well as fur-
ther references to the legal situation in other countries.
Eisenberg discusses a number of new legal principles which en-
tered the common law, such as the reliance principle in contract law
and the modern principle of unconscionability, and points to the role
of particular scholars in establishing these principles (78f.). It is
hardly accidental that such principles have counterparts in the civil
law, and that authors such as Fuller and Llewellyn had strong com-
parative law interests. Likewise the principle of strict product liabil-
ity as promoted by Traynor and Prosser (79) inspired similar
developments in the civil law. On the other hand, the argument for
the non-enforceability of donative promises in the common law, that
the "difficulty of administering a regime in which improvidence and
ingratitude constituted defenses would be substantial," (69f.) is
weakened somewhat by the realization that German law incorpo-
rates just such a regime without experiencing major problems.98
And the common law rule that there is no duty to rescue a person
under hazard of death or injury if the rescue involves no risk (76)
has come under attack not only on moral grounds, but also because
other countries have adopted contrary legal rules without thereby
imposing excessive burdens on their citizens.
Comparative arguments cannot be conclusive in such debates,
but they enhance the quality of the discussion, and thereby
strengthen the check of discourse, whose importance The Nature of
the Common Law has shown so vividly. While it may be too optimis-
tic yet to hope for a wider common law,99 comparative studies can
make legal reasoning more rational, and thus alleviate some of the
puzzlement about law which moved Pascal to exclaim
"There is almost nothing concerning justice and injustice
95. See BVerfGE 5, 85, 135 and BVerfGE 35, 202, 233; the former quotation is ac-
tually given in English in the German text.
96. See BVerfGE 39, 1. The dissenters acknowledged the difference between the
constitutional situations in West Germany and the United States, but still used the
legal treatment of abortion in America as well as in other European countries as an
indication that the legislative decision to liberalize abortion was not obviously mor-
ally wrong.
97. 410 U.S. 113 (1973).
98. See ?? 516ff. of the German Civil Code (BGB).
99. Esser, supra n. 59, at 327ff. discusses the prospect of "universal legal princi-
ples," and their future significance for supranational legal communities.
which does not change its quality as the climate changes.

Three latitudes reverse all of jurisprudence. A longitude
decides truth, or a few years of possession. The basic laws
change. The law has its eras. Funny justice which is delim-
ited by a river or a mountain! Truth on this side of the Pyr-
enees, error on the other."'00
Comparative law sometimes lets us surmount the Pyrenees.
100. Pensees No. 319 (my translation).

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The Nature of the Common Law and the Comparative Study of Legal Reasoning

Author(s): Hanns Hohmann

The Nature of the Common Law and the Comparative

call for special forms of reasoning, and problems of statutory inter-

6. See e.g. P. Heck, "Gesetzesauslegung und Interessenjurisprudenz," an article

creasing part of the legal literature," books devoted to the system-

velop demidivine faculties,17 the major emphasis in systematic treat-

to enlarge the domain of "legal" propositions on which judges can

23. This is pointed out by F. Schauer, "The Jurisprudence of Reasons," 85 Mich.

rules which can serve as bases for deciding individual cases.27

not testable (18). This becomes particularly important in cases

29. See infra sec. VII.

two coherence requirements, the ideal of social congruence, which

31. On Savigny's theory of interpretation see Kriele, supra n. 12, at 67ff.

pretation of legislative texts, but also inform the frequent use of

39. See MacCormick, supra n. 18, at 129ff.; N. Luhmann, Rechtssystem und

the reader approaching the book from a comparative legal perspec-

tal elements of rational persuasion.55

commentary,62 but also because even in a case of first impression the

standard of social congruence65 and a failure to apply or ex-

portant, and justified reliance is very likely" (122). Here the

it would thus be wrong to assume "that courts simply 'find' or 'dis-

70. See also supra sec. III.

either personally congruent, or that transforming it would not be

71. See e.g. Article 4 of the French Code Civil.

72. Cardozo, supra n. 5, at 176.

centered criteria from collapsing into an uncritical celebration of

work for discussing the required decisions and judgments which

been predicted beforehand.81 The persuasive effect of the argu-

Eisenberg pinpoints the importance of the check of discourse for the

subject to rather more lively criticism than their European col-

law in the United States,9' and by supporting his approval of that

91. Here Eisenberg quotes M. Shapiro, "Decentralized Decision-Making in the

ing examples of this can be found in decisions of the West German

which does not change its quality as the climate changes.

100. Pensees No. 319 (my translation).

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