180 Eveline T. Feteris A Pragma-Dialectical Approach to Legal Discussions In analyzing the legal process as a spe- cific fonn of a resolution-oriented discus- sion, I use the pragma-dialectical theory developed by van Eemeren and Grooten- dorst. The dialectic part of the theory im- plies that argumentation is considered as part of a critical discussion in which the interaction of discussion-moves is aimed at a critical test of the point of view under discussion. A resolution in a critical dis- cussion means that a decision is reached as to whether the protagonist has defended his point of view successfully on the basis of commonly shared rules and starting points against the critical reactions of the antagonist, or whether the antagonist has attacked the point of view successfully. The pragmatic part of the theory ana- lyses the discussion-moves in a critical dis- cussion as speech acts which have a certain function in the resolution of the dispute. Thus, the pragmatic part formulates com- municative and interactional rules for the use of language in various infonnal and formal institutional situations.4 The most important components of the pragma-dialectical theory for my purposes are the ideal model for critical discussions and the code of conduct for rational discus- sants. The ideal model is a specification of the stages which must be passed through to further a resolution of a dispute, and of the various contributions thereto found in these stages. In the confrontation stage it is estab- lished what the dispute is exactly about; in the opening stage the participants reach agreement concerning discussion rules, starting points and evaluation methods; in the argumentation stage the initial point of view is defended against critical reactions and the argumentation is evaluated; and in the concluding stage the final result is established. The code of conduct specifies rules for the resolution of disputes in accordance with the ideal model. The rules acknowl- edge the right to bring forward a stand- point and to cast doubt on a standpoint, the right and the obligation to defend a stand- point by means of argumentation, the right to maintain a standpoint which is ade- quately defended in accordance with com- monly shared rules and starting points, and the obligation to accept a standpoint which is defended in this way. Resolution in accordance with these rules carries certain presumptions. One precondition is that discussants in the ideal model wish and will strive to proceed ra- tionally. Another is that discussants are un- constrained in what they bring forward, criticize and accept. Only when these pre- conditions concerning attitudes and cir- cumstances are fulfilled, can observance of the rules constitute a sufficient condition for resolving a dispute. 5 The ideal model and the code of con- duct for rational discussants are a kind of analytical tool for the treatment of legal discussions with respect to the central question of the procedures and rules in law which guarantee a rational resolution of le- gal disputes. I reconstruct legal procedure as a specific implementation of a critical discussion. In doing so, I clarify respects in which a legal process complies with the necessary conditions of the ideal model for critical discussions. I also try to clarify re- spects in which the legal process does not comply with these conditions, and I try to find out how these infringements of gener- al conditions of reasonable behaviour are 'repaired' in a legal process in order to guarantee a rational resolution of disputes. In what is called a dialectical analysis of Dutch legal procedure, I interpret the legal process as a critical discussion be- cause it must be conducted according to Codes of legal procedure. In particular, I interpret those codes as ideal models for legal procedures. 6 I establish similarities and differences between the legal rules and the pragma-dialectical rules, and I attempt to determine which legal rules in addition to the pragma-dialectical rules facilitate a final resolution of legal disputes. In what follows, I will consider a legal process as a specific form of a rational discussion.? The specific character of the legal process concerns the specific restric- tions under which legal conflicts are re- solved. The participants to a legal process are constrained by their genre's beliefs, purposes, assumptions, et cetera which they have to take for granted. Taking the pragma-dialectical model as a general model for the rational resolution of disputes, an analytical reconstruction of legal procedure gives the theorist princi- pled access to the additional procedures and rules required for rational and efficient legal resolution. There is one very important difference between a legal process and a pragma- dialectical critical discussion. In a critical discussion, the participants try to resolve the dispute among themselves, whereas the parties in a legal process present their case to a neutral third party, the judge, who ter- minates the dispute. s Because of this dif- ference, it could be argued that a legal process does not meet the requirements of a critical discussion under pragma- dialectical construal. Thus, one of the cen- tral questions to be answered when clarify- ing conditions of rational conflict resolution in legal proceedings is how the role of the judge in a legal process relates to what happens in a party-resolving critical discussion. 9 To this end, I will discuss the role of the judge in Dutch civil procedure and will describe how the judge facilitates a final settlement of disputes in accordance with general conditions for a rational dis- cussion. lo Taking into account specific legal goals such as legal certainty, legal security and equality, I will specify addi- tional procedures and rules required for a rational resolution. I I In describing the role of the judge in Dutch civil procedure I give an illustration of how certain rules of legal procedure Rationality in Legal Discussions 181 help to ensure a rational resolution of legal disputes. For other aspects of legal pro- ceedings a similar analysis can be carried out. The procedures and rules with regard to the judge should be considered as a subset of a code of conduct for a rational resolution of legal disputes. 12 The Dialectical Role of the Judge in Civil Procedure In analyzing the role of the judge, I will describe how the various stages of a critical discussion are represented in a civil process and I will describe which role the judge fulfills in these stages from a pragma-dialectical perspective. The first stage of a legal process in which the parties advance their points of view can be characterized as the confronta- tion stage of the process. In this stage the judge remains passive. The only thing he has to do is see to it that the parties present their standpoints in accordance with the rules of procedure. In this stage the judge fulfills the role the parties to a critical dis- cussion fulfill jointly when they them- selves see to it that the rules are observed. In a critical discussion the parties par- ticipate voluntarily, and under the require- ment of efficient and rational management of their dispute. Parties to a legal process do not always aim at an efficient and ra- tional resolution of the dispute. Sometimes a party drags the proceedings by delaying his response, thus hindering an efficient resolution. But a party is not allowed to prolong a trial too unreasonably in order that the other party not be hindered from exercising his rights. The defendant in civil proceedings nor- mally is involved in the case involuntarily, and it is not always likely that he will promote a timely resolution. In order to promote efficiency of procedure, the judge can take certain actions, at the request of the plaintiff or in his official capacity, when the defendant does not appear in 182 Eveline T. Feteris court. He can order the defendant to react within a fixed time limit, after which the defendant can answer only during the oral arguments. The same rule applies to the plaintiff: the judge can fix against the plaintiff a time limit within which to reply to the objections of the defendant. So, if higher order conditions with re- spect to the attitude of the participants are not fulfilled, it is the task of the judge to see to it that the discussion complies with the requirements of a rational and efficient discussion. In a legal process, the opening stage, in which the participants reach agreement on commonly shared starting points and dis- cussion rules, remains for the main part implicit. The opening stage can be repre- sented by the institutionalized system of rules and starting points laid down in the Code of Civil Procedure and the Civil Code. In legal disputes it is unlikely that the parties will reach agreement on common rules and starting points among them- selves. Yet, this is one of the requirements for a rational discussion. Therefore, the le- gal system provides an institutionalized system of rules and starting points which functions as such an agreement, and thus guarantees that there are rules available for legal conflict resolution. That the agreement is not reached among the individual parties does not imply that this course of action is not reasonable; it is reasonable with respect to the need to re- solve conflicts in a rational way. The rules should, of course, have been established according to fixed procedures for legisla- tion. From the point of view of the prevail- ing legal system, this idea offormal validity is a sufficient condition for a rule to be called a legal rule. 13 So, for reasons of legal certainty, the opening stage with respect to the agreement on rules and starting points is passed through prior to the discussion. One of the things which should be agreed upon in the opening stage of a criti- cal discussion is what the division of the roles in defending points of view will be. In a rational discussion, someone who ad- vances a standpoint is obliged to defend it, if asked to do so. Because the participants to a rational discussion are required to act as reasonable discussants, they will agree on the division of the roles for defending points of view. In order to guarantee that the division of roles can be settled in civil proceedings, there are rules specifying who has to de- fend which statements. In the Code of Civil Procedure there is a general rule requiring that a party who invokes a legal conse- quence, based on certain facts or rights, bears the burden of proof of these facts or rights, unless a special rule or the require- ments of reasonableness and fairness points to another allocation of the burden of proof. 14 Apart from this general rule, there are specific rules for certain situations in which it is specified which legal grounds and facts have to be proved by the plaintiff, and which legal grounds and facts have to be proved by the defendant. So for reasons of legal certainty, the division of the burden of proof should, to a certain extent, be pre- dictable. A party should be able to assess whether she will be able to make her claim acceptable according to legal standards. In civil proceedings, it is very impor- tant to specify which party has to defend her point of view, because the party who does not succeed in proving her case runs the risk of losing the trial. Therefore, it is the task of the judge as a neutral third party to determine when there is a specific rule and when the requirements of reasonable- ness and fairness require another alloca- tion. In apportioning the burden of proof, the judge fulfills the role which the partici- pants to a critical discussion fulfill jointly when they make arrangements concerning the burden of proof. In the first part of the argumentation stage of civil proceedings, the plaintiff de- fends his claim. In this stage the judge ful- fills the role of a passive antagonist. Legally speaking, the judge cannot accept the point of view of the plaintiff without checking the acceptability of the claim on factual and legal grounds. Whether the de- fendant appears in court or not, the judge always decides whether there is a legal rule applicable to the facts stated by the plain- tiff. This implies that the judge checks whether the plaintiff has presented enough facts to make the legal ground acceptable and whether the law attaches the required legal consequence to these facts. In the pragma-dialectical model, at the argumentation stage the antagonist may challenge either or both of the two aspects of the acceptability of the "argumentation" offered in support of a point of view: (1) the acceptability of the grounds (the prem- isses) of the protagonist's argument, and (2) the acceptability of the inferential weight or force of those grounds as support for the protagonist's point of view (or con- clusion). The former challenge is called "casting doubt on the propositional content of the proponent's argumentation" and the latter challenge is called "casting doubt on the justificatory potential of the proponent's argumentation". (If the argument is aimed at refuting rather than defending a point of view, the challenge to the inferential weight of its grounds is said to be "doubt cast on the refutatory potential of the argumenta- tion"). I will thus be using this pragma- dialectical terminology in this paper. So when the judge questions whether there is a legal rule applicable to the facts stated by the plaintiff, he has, in pragma- dialectical terms, implicitly cast doubt on the justificatory potential of the plaintiff'S argumentation. Although this expression of doubt remains implicit, he fulfills the dialectical role of an antagonist who brings forward doubt with respect to the point of view under discussion. Because the discus- sion role of the judge is institutionally determined and the parties know in advance which 'institutionalized' forms of doubt they will have to respond to, the critical reactions of the judge can remain im- plicit. His critical reactions are laid down institutionally for reasons of legal security. Rationality in Legal Discussions 183 Everyone who wants to invoke a legal right knows in advance which arguments he will have to bring forward. From a pragma-dialectical point of view, the judge supplements the critical re- actions of the defendant. He adds those critical reactions which are required from a legal point of view: it is the task of the judge to check whether the plaintiff's claim is acceptable on legal grounds. So, for reasons of legal certainty, the judge acts as a supplementary antagonist who brings forward critical reactions with respect to the legal basis of the claim. In the second part of the argumentation stage the judge evaluates the argumenta- tion. In pragma-dialectical terms he de- cides whether the propositional content and the justificatory potential of the argu- mentation of the plaintiff are acceptable. In a critical discussion, the acceptability of the propositional content can be assessed in two ways. The first is by means of what is called "the identification procedure"- whatever method the participants agree to follow for identifying what grounds or evi- dence they already grant or are willing to treat is given for the sake of argument- what counts, in other words, as "an accept- ed starting point for the argumentation". Second, should some ground not identifia- ble as such a starting point be introduced, its acceptability is assessed by what is called "the testing procedure", which is again whatever method the parties agree to follow to decide what new grounds or evi- dence shall be counted as acceptable. Normally the testing procedure implies that the participants together consult agreed-upon oral or written sources. When evaluating the argumentation of the plaintiff, the judge first decides whether a fact stated by the plaintiff is generally known. In terms of the evaluation of the content of the argumentation in a critical discussion one could say that the fact is a matter of commonly accepted knowledge available for the evaluation of the argu- mentation. Although the parties did not 184 Eveline 1: Feteris make a list of commonly shared starting points, the judge, as a neutral third party, decides which facts can be considered as generally known and thus as common starting points. When a fact is not generally known, it has to be proved. The various forms of proof, such as written documents, state- ments of witnesses and experts etc., can be considered as specific foons of testing methods which are used for the testing pro- cedure. As a neutral third party the judge decides whether the proof is conclusive or not. When the judge decides that a fact can be considered as 'true' for legal purposes, he fulfills the role the parties in a critical discussion fulfill jointly when they check whether the propositional content of the argumentation is acceptable. In order to check whether the argumen- tation is an adequate defense (that is, in pragma-dialectical terms, whether the jus- tificatory potential of the argumentation is acceptable) the judge finally has to decide whether there is a legal rule applicable to the facts. In order to apply a legal rule to the facts the judge often has to interpret the law. IS In pragma-dialectical terms, the judge has to make explicit a bridging argu- ment, thus formulating a rule of interpreta- tion. For instance, there is the rule that an omission within the power of the defend- ant can be considered as a breach of duty and thus as a tort. What the judge does when he supplies the legal grounds and proposes a certain interpretation can be considered as the procedure for making ex- plicit the missing premises in a critical dis- cussion. But the judge does more: he also checks whether the propositional content of the added argument is acceptable. That is, he checks whether the argument which is made explicit belongs to the common starting points: the rules of substantive law. When it is not completely clear from the outset whether a legal rule is applicable, the judge has to decide, for reasons of legal certainty, whether the interpretation rule can be considered acceptable. 16 In the final stage of the process, which can be considered as the concluding stage, the judge has to decide whether the claim of the plaintiff is justified or not. If the facts stated by the plaintiff can be consid- ered as established facts and the judge has decided that there is a legal rule which connects the claim to these facts, the judge will grant the claim. If the facts cannot be considered as an established fact, or if there is no legal rule applicable, the judge will reject the claim. The role the judge fulfills when giving a final decision can be compared to the role participants to a criti- cal discussion fulfill jointly when they de- cide whether the protagonist has defended his standpoint successfully. As a third party to the dispute, the judge has to justify his decision: he has a legal obligation to give a justification. The parties have a right to know which consid- erations underlie the decision. When a par- ty does not agree with the decision, he can appeal the decision on the basis of the ar- gumentation given in the justification. The judge in appeal can use the argumentation in order to decide whether the decision is right: whether the law has been applied correctly or not. Dialectically speaking, the judge gives account of his decision about the acceptability of the argumentation of the party who has asked him for a decision. He makes clear what his opinion is about the factual grounds stated by the plaintiff and what his opinion is about the legal grounds. The Role of the Judge and the Rational Resolution of Legal Disputes During the discussion the judge acts as a guarantor of procedure: he sees to it that the rules are obeyed. In certain cases he can do this in his official capacity, in cer- tain cases he can do this on request of one of the parties. At the end of the discussion the judge checks whether the argumenta- tion is acceptable and he decides whether the party who has asked him for a decision has defended her claim successfully. For reasons of legal certainty, in a civil process the judge does what the parties in a critical discussion do jointly. From a pragma-dialectical perspective, the role of the judge as a guarantor of pro- cedure and as judge of claims guarantees that the dispute can be resolved. Contrary to the participants in the normative ideal model of a critical discussion who are re- quired to have a reasonable discussion atti- tude, the parties to a legal process are not expected to be prepared to reach agree- ment on certain matters and they are not expected to give each other optimal oppor- tunities to bring forward their point of view. The parties to a legal process cannot be expected to be cooperative. Therefore a neutral third participant, the judge, guaran- tees that the procedures required for a reso- lution are passed through in an efficient and rational way. The procedures and rules with respect to the things the judge does in a civil process can be considered as addi- tional rules and procedures which are nec- essary and sufficient to guarantee a rational and efficient resolution of a dis- pute from a legal perspective. From a legal perspective a rational resolution also im- plies legal certainty. From this point of view, it is reasonable to add certain proce- dures and rules which are not necessary in a discussion where higher order conditions are fulfilled, or where the outcome does not have to meet certain standards of legal acceptability. I? The way the judge reaches his decision is, according to dialectical standards, not less reasonable than the way a decision about the final outcome of a critical discus- sion is reached. When the judge grants the claim of the plaintiff, according to legal standards he must be convinced of the ac- ceptability of the argumentation for this claim. This conviction of the judge is not based on a psychological state of mind, but on a reasoned evaluation of the acceptabil- Rationality in Legal Discussions 185 ity of the argumentation within the implicit boundaries of the legal genre. The argu- mentation has to be acceptable according to legal standards: the propositional con- tent and the justificatory potential should be defended according to commonly shared starting points and testing methods. If the argumentation is not acceptable ac- cording to these standards, the judge will reject the claim. In a critical discussion the question whether the argumentation is acceptable depends on the starting points and the eval- uation methods of the participants; there is no external criterion of acceptability. We could say that acceptability is relative to the participants in the dispute. In legal pro- ceedings acceptability is related to an ex- ternal criterion: legal acceptability. The acceptability of the claim is checked with respect to whether there is a legal rule which attaches the claim to the facts stated by the plaintiff. In legal proceedings it is the task of the judge to answer this ques- tion. The judge has to guarantee that the proposed outcome is in accordance with rules of substantive law and prevailing opinions on the interpretation of legal rules. The requirement of fairness implies that like cases are treated alike; so cases which are identical from a legal point of view should be decided according to the same rules. Because the parties do not resolve their dispute among themselves, they should be made aware of the considerations underly- ing the decision. When the judge mentions the grounds for his decision, he gives an account of the factors which have played a role in the evaluation of the acceptability of the propositional content and the justifi- catory potential of the argumentation of the plaintiff. This evaluation forms the basis for the evaluation of the decision before higher courts. In proceedings before the Court of Appeal and before the Supreme Court the decision may be criticized on the basis of the argumentation brought forward. 186 Eveline T. Feteris Conclusion I have described the position of the judge from a pragma-dialectical perspective and I have pointed out in which way the role of the judge furthers an efficient and rational resolution of the dispute. 18 For ar- gumentation theory, and especially for the pragma-dialectical argumentation theory, such a reconstruction is important, because a dialectical reconstruction demonstrates how the legal model for rational conflict resolution relates to a general ideal model for rational discussions. In my analysis I have pointed out how the terminological distinctions developed in pragma-dialectical theory prove to be useful in describing the specific characteristics of legal procedures for rational conflict-resolution. For argumentation theory in general, the reconstruction suggests how field- invariant and field-dependant criteria for rational argumentation can be described. The legal rules with regard to the tasks the judge should fulfill can be considered as specifications of additional rules which should guarantee that the dispute can be re- solved in a rational way. In this way, an ex- planation can be given why certain limitations with respect to the reasonable behaviour of the participants make certain additional procedures necessary. 19 In order to comply with specific legal goals, such as legal certainty, certain additional rules with respect to the role of the judge as a neutral third participant are required. For legal theory the reconstruction makes clear what constitutes the specific character of legal rationality, what the sim- ilarities and differences are with respect to a general ideal model for rational discus- sions and how these differences can be ex- plained or justified. When the pragma- dialectical ideal model is considered as a definition of the necessary conditions for the resolution of disputes in a rational way, a normative reconstruction of legal discus- sions forms an important tool for the iden- tification of similarities and differences with respect to the field-invariant and field-specific elements which are required for a rational solution of disputes. Bibliography Aarnio. A. [1987]. The Rational as Reasonable. Dordrecht. Holland: Reidel. Alexy, R. [1989J. A Theory of Legal Argumenta- tion. The Theory of Rational Discourse as Theory of Legal Justification. (R. Adler & N. MacCormick, Trans.). Oxford: Clarendon Press. (Original German edition copyright 1978.) Dworkin, R. [1977J. Taking Rights Seriously. Cambridge Mass.: Harvard University Press. Eemeren, EH. van & Grootendorst, R. [1984J. Speech Acts in Argumentative Discussions: A Theoretical Model for the Analysis of Discus· sion directed towards solving Conflicts of Opinion. Dordrecht. Holland: Foris. Eemeren, EH. van & Grootendorst. R. [1988]. Rationale for a Pragma-dialectical Perspec- tive. Argumentation 2, 271 -291. Eemeren, EH. van & Grootendorst, R. [1992]. Argumentation, Communication, and Fallacies. Hillsdale. NJ: Erlbaum. Feteris, E.T. [1989J. Discussieregels in het recht. Een pragma-dialectische analyse van het burgerlijk proces en het strafproces (Rules for discussion in law. A pragma-dialectical analy- sis of the civil process and the criminal proc- ess). Ph.D. Diss. University of Amsterdam. Dordrecht, Holland: Foris. (With a summary in English) Feteris, E.T. [1990J. Conditions and Rules for Ra- tional Discussion in a Legal Process: A Prag- ma-Dialectical Perspective. Argumentation and Advocacy 3, 108-117. Feteris, E.T. [1991]. Normative Reconstruction of Legal Discussions. In: EH. van Eemeren, R. Grootendorst, J.A. Blair, Ch.A. Willard (Eds.), Proceedings of the Second International Conference on Argumentation. Amsterdam: SICSAT,768·775. Gorden. R.W. [1984] Critical Legal Histories. Stanford Law Review, January, pp. 57 ff. Habermas, J. [1971]. Theorie der Gesellschaft oder Sozialtechnologie? Eine Auseinanderset- zung mit Niklas Luhmann. In J. Habermas & N. Luhmann (Eds.), Theorie der Gesellschaft oder Sozialtechnologie-Was leistet die sys- temforschung? Frankfurt a,M.. Suhrkamp, 142-290. Habermas, J. [1983]. Moralbewusstsein und kom- munikatives HanOeln. Frankfurt a.M.: Suhrkamp. Habermas, J. [1987]. Theorie des kommunikativ- en Handelns, fourth edition, first edition 1981, Frankfurt a,M,: Suhrkamp. Habermas, J. [1988] The Tanner Lectures on Hu- man Values. Salt Lake City: University of Utah Press. Rationality in Legal Discussions 187 Hart, H.L.A. [1961]. The Concept of Law. Oxford: Oxford University Press. MacCormick, N, [1978]. Legal Reasoning and Legal Theory. Oxford: Oxford University Press. Peczenik, A. [1983 J The Basis of Legal Justifica- tion. Lund. Raz, J, [1970]. The Concept of a Legal System. Oxford: Oxford University Press. Toulmin, S.E. [1958]. The Uses of Argument. Cambridge: Cambridge University Press, Toulmin, S.E., Rieke R. & Janik, A. [1984], An Introduction to Reasoning, (2nd ed.) New York: MacMillan. 1st. ed. 1979. Unger, R.M. [1986J, Critical Legal Studies Move- ment. Cambridge (Mass.). Notes * The research for this article has been made possible by the Netherlands Organization for Scientific Research (NWO). An earlier version of this article was presented as a lecture in the Department of Philosophy Colloquium, University of Lethbridge, Octo- ber 23, 1991. I thank John Woods for his very useful critical comments. 2 Van Eemeren and Grootendorst [1992], p. 218 claim that the pragma-dialectical rules are nec- essary and sufficient conditions for resolving disputes if certain higher order conditions con- cerning attitudes and circumstances are ful- filled. That the legal rules are considered as additional rules for a rational resolution of le- gal disputes implies that these rules are re- quired as additions, amendments or restrictions of the pragma-dialectical rules in a context in which certain higher order condi- tions are nat met. .1 Toulmin [1958] and Toulmin, Rieke and Janik [1984] consider argumentation proce- dures as field-invariant and evaluation criteria with respect to the argumentation as field- variant. 4 I will not be dealing with the speech act aspect of legal argumentation in this paper, For an ac- count of the speech act aspects see Feteris [ 1990], See van Eemeren and Grootendorst [1988. I 992J, 6 In considering the codes for legal procedure as an ideal model for legal discussions I concen- trate on what is called 'the law in the books' (as opposed to what is called 'the law in ac- tion'). I compare the pragma-dialectical ideal model with the ideal model for legal discus- sions as it can be found in codes of legal pro- cedure and in jurisprudence, This implies that the analysis carried out constitutes a rational reconstruction of legal procedure, The rational reconstruction consists of a description of the norms for legal argumentation from a norma- tive perspective. The rules are described as rules which contribute to a rational resolution of legal disputes. For examples of such a nor- mative reconstruction see Feteris [1991], 7 In modern European legal theory the legal process is considered as a specific form of a rational discussion. See for instance Aarnio [1987J, Alexy [1989], Habermas [1988J, Mac- Cormick [1978). Originally, Habermas [19711. p. 20 I argued that a legal process should be considered as a discussion which is not free from coercion, Influenced by the critique of Alexy, Habermas [1987], pp. 62-63, [1988] has changed his point of view, For a different point of view on the ration- ality of the process see representatives of 188 Eveline T. Feteris the 'Critical Legal Studies' movement in the United States such as Gorden [1984], Unger [ 1986]. 8 In many cases the judge settles the dispute in the pretrial stage among the parties so that the case never gets to trial. For other differences between legal discus- sions and discussions according to the prag- ma-dialectical model see Feteris [1990]. 10 There are some essential differences between the civil procedure in the civil-law tradition in the Netherlands and in the common-law tradi- tion. First, in the Dutch legal system judges decide on the basis of statutes (Codes) and not on the basis of precedent. Second, in the Dutch legal system there is no jury. The judge de- cides both on the law and the facts. This im- plies that the judge has an important role not only with respect to observance of the rules of procedure, but also with respect to the evalua- tion of the adequaey of the claims and argu- ments advanced by the panies. II Legal certainty implies avoidance of arbitrari- ness (thus trying to aim for predictability) as well as that the result is in accordance with the legal value code. See f.i. Aarnio [1987]. p. 44. 12 For a more extensive account of a normative reconstruction of legal proceedings and of the legal procedures and rules for a rational reso- lution of legal disputes see Feteris [1989]. 13 Of course from a legal philosophical perspec- tive, one could propose other criteria for the validity of legal norms. For instance, systemic validity takes as a criterion that the norm is ac- cepted and is not in contradiction with another norm in force in the same system. Empirical or factual validity takes as a criterion whether a nonn is actually used. Axiological validity takes as a criterion whether a nonn can be jus- tified on the basis of certain principles of ra- tionality, cf. Aarnio [1987], pp. 33-46. See also Hart [1961], cc. 5 and 6, and Raz [1970], ch. 8, on the criteria for detennining what counts as a valid rule of law. 14 See clause 177 of the Code of Dutch Civil Pro- cedure. 15 In legal philosophy some authors make a dis- tinction between so-called 'clear cases' in which there is no problem of interpretation and 'hard cases' in which the legal rule has to be interpreted. See Dworkin [1977], ch. 4, Hart [1961]. ch. 7, MacCormick [19781. pp. 195-203, 227-228. 16 In deciding on the applicability of a legal rule, we could say that the judge is using a specific form of a testing procedure, a certain argu- mentation scheme. For instance the judge can check whether the argumentation scheme for argumentation on the basis of analogy is ap- plied correctly, whether the comparison is made with respect to legally relevant similari- ties. For a distinction between different types of argumentation schemes and their applica- tion see van Eemeren and Grootendorst [1992], ch. 8.2. 17 The rationality of the pragma-dialectical rules is dependent on their problem validity, their power to promote the resolution of disputes, and on their intersubjective validity, their ac- ceptability for discussants. The rationality of the legal rules is dependent on what can be considered as the 'underpinning reasons' for accepting the legal rules of a certain legal sys- tem. Cf. Aarnio [1987], p. 37, MacConnick [1978], pp. 63-65, Peczenik [1983], p. 27, pp. 104-105. 18 For other aspects of the legal process I specify in a similar way which elements. roles and procedures are required to guarantee that the dispute can be resolved in a rational way (see Feteris [1989, 1990 D. 19 Cf. Habermas [1983], p. 102 who argues that in law certain institutional precautionary measures are required to neutralize certain in- ternal and external influences in order to be able to fulfill the idealized requirements of a rational discussion. EVELINE T. FETERIS lNSTITUUT VOOR NEERLANDISTIEK UNIVERSITY OF AMSTERDAM SPUISTRAAT 134 1012 VB AMSTERDAM, THE NETHERLANDS!.J