Christiane Wendehorst, Der Staat als Grundlage privatrechtliche Argumentation, 56 Am. J. Comp. L. 567 (2008) [`Wendehorst, der Staat`]; see also Christiane Wendehorst, Von Arbeit im Recht, am Recht und über Recht, in Festschrift für Claus-Wilhelm Canaris zum 70. Geburtstag 1403 (Andreas Heldrich et al. eds., 2007) [hereafter Wendehorst, Von Arbeit], where, however, I have identified only three of the four perspectives. I would like to express my sincere gratitude to Neil Walker, without whose patience and perseverance I would never have revised my previous exhibition and who greatly improved this article with his valuable comments. I have presented a model of legal interaction1 – that is, the interaction between individual actors, such as judges, and the law – which essentially assumes that this interaction can normally be analysed as one of the four perspectives vis-à-vis legal norms or as any combination, mixing and overlap of these four perspectives. Each perspective has its own characteristics on how legal norms are generated, identified and addressed. The four ideal-typical perspectives can be described as an “internal” perspective, an “external” perspective, a “sovereign” perspective, and a “subordinate” perspective2 (see Figure 1): The sovereign perspective is the evaluation of the law in the sense of better or worse in order to conceive, assert, criticize or improve legal norms in real or hypothetical ways (“working on the law”). Unlike legal practitioners, actors who adopt a sovereign perspective are not bound in their arguments by the legal norms to be examined, although other legal norms that are not questioned may also be involved.
These protagonists imagine exercising sovereign power and thus being able to decide from a set of conceivable projects on the “best” legal or planning design to solve a practical problem or pursue a particular project. Usually, this is the view taken by those involved in legislation, whether as members of a legislature, as government employees, or sometimes in the field of jurisprudence, and if there is no precedent, as judges. However, lawyers can also criticize the law for very fundamental reasons and make suggestions on how it can be developed. Legal disintegration can lead to the fact that the absence or decentralization of an internal perspective anchored in the state leads to the rules for the recognition and transfer of connections not fulfilling their function. Legal work will then replace these functions with the appropriate tools from the external and sovereign point of view. This may mean that a classification of Luhmann20-type communications as belonging or not belonging to the legal system replaces the criteria of legal validity generated internally. The degree of relative authority, as understood externally, could replace conflict and settlement rules; That is, the accepted norms enunciated by the most influential and authoritative actors, or by the majority of actors, could dominate,21 or the protagonist could move to the sovereign perspective and opt for the “best” rule. Similarly, descriptive and evaluative interpretation can replace an integrated practice of internal normative interpretation. Ultimately, this may mean that something like social validity replaces legal validity and social weight takes the place of applicability or relevance in the legal sense.
Some statements about what law is may take the place of a source of law in the normative sense, relative authority may act as a quasi-conflict rule, and protagonists may choose the “best” rule if the relevant sources are unclear or incomplete. A descriptive approach can be applied to any type of legal phenomenon. However, if it makes sense to speak of a quasi-legal commitment, we must limit the term to describing what other relevant people consider to be internally binding (“mirror approach”12) or, as Luhmann puts it, to communications that legally/illegally follow the binary code13, as evidenced by statements made by various actors. The subordinate perspective is the perspective of the protagonists whose activity is subject to the law and who explore their field of action, maximize this space and pursue their own objectives and evaluate solutions to know if they are more or less favorable to the achievement of these objectives (“work under the law”). This is the view generally taken by lawyers who defend the interests of their clients in court; But other people, often secretly, may also argue from the subordinate point of view. Unlike the sovereign perspective, the subordinate perspective does not seek to change or criticize the law, but treats it as given and rather tries to find a construct that best serves the interests of a particular party. Unlike the domestic perspective, the subordinate perspective is not just about the “right” decision, but about extending and elaborating legal norms so that they correspond to their own preferences to such an extent that they are or could be acceptable as an authoritative promulgation or enforcement of the law. At first, there are usually a large number of theoretically possible designs to choose from, and the protagonist must perform a series of tests to reduce their number. One of the most important criteria is feasibility, which includes legal feasibility, in particular competence and compatibility with higher-level standards such as the Constitution, as well as feasibility from a practical point of view, for example in financial and other terms. The selection of the “best” design from a set of possible designs is then largely a matter of evaluative choice. Each possible design is evaluated according to deontological and/or consequentialist, intrinsic and/or extrinsic standards.16 Even in the face of the “real world”, a compromise between two or more competing solutions must often be found for pragmatic reasons. In traditional analysis, the internal perspective perceives the law as a normative framework and classifies responses as good and bad.
It is taken up by the protagonists who apply the law and feel attached to the normative statements of the legal norms applied (“working in the law”). The paradigmatic actor who is generally expected to adopt this perspective is a judge who decides a case, or anyone who plays the role of a hypothetical judge and/or decides hypothetical cases, such as a lawyer who deals with doctrine analysis or a law student. The essence of the case decision lies in the search for the “right” answer”3, regardless of the possibility that there may sometimes be several equally correct answers to a particular question.4 In particular, my ideas about internal and external perspectives are fundamentally similar to the analytical framework introduced by H. L. A. Hart and refined by Robert Alexy. albeit in a slightly different context: H. L. A. Hart, The Concept of Law 88–90 (2nd ed. The outside observer is often confronted with divergent statements about the normative content of the law, and a report on the law cannot give a complete picture of all the divergent but potentially relevant points of view. A selection is therefore made from the different sources, highlighting some and neglecting others.
This selection process from an outside perspective is based on the “importance” or “weight” of the respective source. This may be the degree of ingenuity reflected in the source, but the importance of a source is most often measured by the likelihood that its views will be accepted, applied, and enforced by a hypothetical court: factors that may matter include rank and reputation, majority, and continuity (“relative weight principle”14). What follows after this exercise of judgment of the relative authority of sources is what might be called “descriptive interpretation”; 15 That is to say, the protagonist will attempt to identify significant features, group them or group them into categories, which, in the case of legal norms, will ideally result in a single reformulated rule or principle, or possibly several competing rules or principles. By “U.S. legal perspective,” we mean that Wex is grounded in U.S. law and that, ideally, any discussion begins in the abstract and then extends in the general order to relevant federal, legal, and regulatory specificities. International law and comparative law are explicitly discussed as such. In practice, the “U.S. law perspective” means that, unless otherwise stated, Wex`s definitions and overviews speak of U.S. law.
The perspectives just described are ideal types and rarely found in their pure form. On the contrary, any legal examination in the broadest sense usually reflects a diversity, mix or combination of perspectives. A jurist will take, for example, the external perspective for a historical or comparative overview, the internal perspective for the analysis of classical education and the sovereign perspective for critical evaluation and proposals de lege ferenda. On closer inspection, any type of dispute suddenly feels like a mix or a change in perspective. For example, in each sentence of a court decision, we could characterize a subset as written from an external point of view, citing relevant provisions and scientific points of view, a subset that includes the facts under the provisions as formulated from an internal point of view, and remarks incidental to the impact assessment as they are drafted from a sovereign point of view.