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International law suffers from what D. J. Harris wittily calls “the Austinian handicap”: For Austin, familiarly, to qualify as law in the proper sense, a norm must be a command from a political superior—a sovereign—to a political inferior, and backed by a threat of evil in the even of non-compliance. What is “usually styled or [...] consists of opinions or sentiments current among nations generally. It therefore is not law properly so called” (Austin 1954, 141-2). Austin is fundamentally correct in saying that international law does not qualify as law by his test for law. But Austin’s test takes as a paradigm for law a system of municipal law. On the face of it, therefore, there is no special reason why we should expect international law to satisfy the test. But then a different question arises: If international law is not law by Austin’s test, and Austin’s test is inappropriate, by what other, appropriate test for law might international law qualify?

I have to this point in this book used the term “authority” and cognate terms, but I have said nothing about how to understand the concept of authority in the context of an enquiry into legal institutions and the sources of law. That might seem extraordinary, and even perverse, for the following reason. Legal counsel pleading a case or advising a client, judges and other legal officials holding judicial hearings and issuing opinions and verdicts, legal scholars commenting on and analyzing legal decisions—all habitually talk about relevant legislation, or relevant case law, as being the “authorities” for the substantive legal claims that they make. It is of the essence of law as an institutionalized normative system that legal decision-making be based on grounds that are within the normative system. An account of the sources of law, which made no reference to the concept of authority, would seem therefore bizarrely incomplete.

The primary aim of the present volume is a rational reconstruction of legal doctrine.

Legal doctrine claims to produce theories, which I shall call “juristic theories.” Though one can hardly work out a general definition of theorizing, equally applicable to science in the strict sense and to legal doctrine, the word “theory” in the present context indicates the following: Legal theories can have different levels of abstraction. For example, a theory may simply indicate that some cases resemble other cases. The theory provides, then, a description of particular cases, mapping out possible ways by which to follow the law and possible violations of the law, listing possible interpretations of a statute, developing technical solutions that may facilitate obedience of the law and prevent its violation, and developing relevant distinctions between types of cases.

Let me now turn to a critical assessment. Legal doctrine is a product of premodern evolution, for it developed in a line that spans from Greek philosophy and Roman law to medieval and the reaction against natural law effected in the spirit of Hegel and Savigny. Modern philosophy made a linguistic turn and left this tradition behind. The new philosophy—more or less analytic—led to an erosion of legal doctrine. At the same time, radical reformers perceived legal doctrine as an unnecessary ballast. Indeed, criticism affected all legal argumentation, in legal practice and doctrine alike.

Let us deal now with the problem of the normativity of legal doctrine. As stated above, legal doctrine includes “fused” statements . The meaning of these statements has a normative component. But is this normativity justifiable? If so, is it a species of moral normativity? Ought the courts to follow the views of legal doctrine, among others? Do the courts act immorally when they ignore such views?

Social normativity is an important keyword in our project of making sense of legal doctrine. Other keywords are defeasibility, weighing, and equilibrium. Theories of the defeasibility of legal reasoning have a strange history. In the mid-20th century, H. L. A. Hart wrote what follows:

A theory of legal doctrine was previously outlined based on a wide reflective equilibrium centred on platitudes. But a critic may ask whether a doctrine of this kind—containing normative components—can lay a claim to truth. For example, can a legal interpretive statement—supported by a weighing of moral arguments—be true even if it can be justified only by a set of premises containing evaluations? Here we will turn to a more abstract problem than that discussed between relativists and objectivists in moral theory. Relativists and objectivists can both be cognitivists. Relativists can claim truth but this is a relative truth, the truth within a framework. Objectivists can claim the truth which is independent of a framework (if any such thing is possible). Obviously, a relativist can also be a non-cognitivist. A non-cognitivist can be an objectivist only in a rather odd sense, which is by assuming that there are objective values, even if no one can ever utter a truth-evaluated sentence about them.

Legal doctrine faces philosophical criticism. It was pointed out in the foregoing chapters how one can reply to these objections.

In this chapter we shall sketch a general account of practical reasoning, in order to provide the basis for our model of legal reasoning. This reflects the idea that legal reasoning can be viewed as an application of a more general human competence, which we call . Practical rationality is a fundamental aspect of , by which we mean the appropriate way of processing information through reasoning. As we shall see, practical rationality complements , the other fundamental aspect of rationality.