The non-legal premises of law
A first observation is that law arises when there is no peace, that is, when there is conflict. Thus litigating parties make for a process, a time of struggle, of litigation, which is stylized and symbolic, animated by argument and counter-argument, to establish what is the law to be observed: that is, the rule to be followed to restore peace. While it is true, with the advent of the legal Codes, that a rule exists prior to the contestation of fact, it is also true that this statement is far too limited, and in large part constitutes a legal fiction. In fact, the rule pre-exists, certainly in the sense that there is a corpus, a body of law, whether civil or canonical, but the reconstruction of the case in terms of law and fact, its definition, is coextensive with the entire process, so that the written rule – the law, the article or canon – is not itself the only rule, as the legal syllogism interpretive method would have it, but it is embedded within a complex procedure known as interpretation.
Why, for example, do we consider one article, or canon, to be relevant and not another? Why does the reconstruction of procedural truth, as distinct from factual truth, take into account some things, and not others? What place do the judge’s convictions have, in his own judicial conduct and in the development of the case? These are all things that are not to be found in a Code, but which constitute factors that, in conjunction with the written rules, will lead to the decision regarding the rule to be followed in the given case, the a posteriori rationalization of the extremely complex chaos that is empirical reality, the conflict from which one starts in order to construct the law, the time of peace.
It should be noted, on the other hand, that what has been said does not apply only within a process, but can be considered proper to the entire legal experience, at all levels. Thus the issuance of an administrative act is more than a mere application of a formal or procedural rule, although it obviously does not occur without it. Although it falls within a discretion granted to public authority, again it requires a context, which here is the public good, that reshapes and redefines in specific terms the action of the administration, applying it at that particular juncture. We can then ask: Why do we adopt a particular measure, and not another? Why are the interests at stake assessed in that particular way, and not otherwise?