Paradoxophilia

• Author: Philipp Sahm
• Pages: 110-135

ANCILLA IURIS (anci.ch) 2015: 99 – Article 99

Paradoxophilia

I. In the remote areas of legal scholarship ...

… far away from the legal mainstream, the boundaries of law are explored. These secret

dimly lit societies fathom paradoxes in law. A paradox, so they say, is like God, an “indicable

whole”.1 It “is an evanescent object, that is, a non-object oscillating between being […] and

not being”.2 One can hardly even talk about it: “Paradoxologists are people speaking about

something that cannot be spoken about (so easily).”3 Rumour has it that spirits haunt this

uncanny scenery: “The undecidable remains caught, lodged, at least as a ghost – but an essen-

tial ghost – in every decision, in every event of decision.”4 Needless to say, it is not particu-

larly easy to decipher what these rumours may mean. To say the least, the combining of law

with paradoxes has led to some rather obscure results.

For some scholars the no tion of paradox has become the default term t o denote the prob-

lem of the impossibility of a final justification, be it for the foundation of normative order or a

philosophical position.5 From this perspective the appearance of paradoxes and aporia can be

understood as signs of uncertainty triggered by historical change or conceptual transition.

The mysterious language employed by the paradoxologists can then at least partly be

explained by the fact that the se authors try to address the most difficult question s of ultimate

justifications: They actually do speak about something that cannot be so easily spoken about.

This article, however, takes a different perspective. There seems to be a more immediate and

less transcendent relation between law and paradoxes that has not yet been explored. The

current author is convinced that by sharpening one’s analytical weapons, it is possible to

establish a connection between law and paradoxes and speak about them without falling vic-

tim to obscurantism or pol tergeists. This article argues that legal dec ision-making situations

and paradoxes pose structurally identical problems. This insight allows for a better under-

standing of legal decision-making and, in addition, it explains why law is necessarily incom-

plete in a Gödelian sense. This is not merely a theoretical insight, but instead one that has

valuable repercussions upon how we approach legal methodologies. Legal methodologies

are supposed to guide the legal decision-making process: If legal decision-making is the

1

* I am indebted to Gunther Teubner, Dennis Paterson, Giovanni Sartor, Emma Linklater and Sebastian Kohls

for critical comments on this article. Furthermore, I owe thanks to Jan Mikelson and Jan Sbierski for their

explanations of some mathematical concepts.

1Jean Clam, The Reference of Paradox: Missing Paradoxity as Real Perplexity in Both Systems Theory and

Deconstruction, Paradoxes and Inconsistencies in the Law (2006), 77, 80.

2Clam, (n. 1), at 81.

3Clam, (n. 1), at 81.

4Jacques Derrida, Force De Loi: Le Fondement Mystique De L‘Autorité, 11 Cardozo Law Review (1990), 920,

965.

5 The usage of this phrasing was inspired by Rudolf Wiethölter speaking during a seminar discussion at the

Cluster of Excellence Normative Orders at Frankfurt Goethe University on 21 January 2015.

by Philipp Sahm*

Philipp Sahm – Paradoxophilia

100 ANCILLA IURIS (anci.ch) 2015: 99 – Article

problem and legal methodologies are the tool to solve this problem, then understanding the

structure of the problem (i.e. the nature of legal decision-making) informs us of how the tool

(the legal methodology) needs to be designed in order for the judicial process to function suc-

cessfully.

This article aims to provide a new basis for the discussion about paradoxicality in law by

demystifying the notion of legal paradox. It is structured as follows: In Part II, we will closely

compare legal decision-making situations to the prototypical paradoxes of logic. In order to

do so, four common features in paradoxes and legal decision-making situations have to be

analysed. More precisely, it is argued that legal decision-making situations share at least four

features with paradoxes. Firstly, legal cases, like paradoxes, lead to undecidable situations

(which I would like to call the “undecidability argument”). Secondly, legal cases can, like para-

doxes, be resolved by the introduction of a new distinction (resolvability argument). Thirdly,

paradoxes drive the development of thought in their respective field and so do legal cases

(motor argument). Fourthly, the difficulty of a legal question posed by a case can change over

time, just as the paradoxica lity of a paradox can alter (dynamics argument). Once the similari-

ties are outlined, their nature has to be analysed and it has to be determined whether the sim-

ilarities apply to all kind of legal decision-making situations or rather a unique type of legal

case. Part III takes the above findings and looks at their consequences by outlining the lessons

that can be learnt for legal methodologies.

II. The Paradoxicality of Legal Decision-Making Situations

A. The Objects of Comparison

To begin with, the objects of comparison need to be defined. The term “paradox” is com-

monly defined as an argument tha t, from apparently acceptable premises and by apparently

sound reasoning, leads to self-contradiction or an absurdity.6 Sometimes, the term paradox

simply refers to the contradictory or absurd conclusion of such an argument, or it denotes a

proposition that is intrinsically unreasonable. In this meaning, “paradox” is often used syn-

onymously with “antinomy”.7

On the other hand, one has to distinguish between the legal decision as the result of the

decision-making process and the situation of legal decision-making. The object of compari-

son is not the result of rendering a decision but the situation in which a legal decision must be

reached. Additionally, another specification must be made in order to define which decision

is meant. Often it is not the legal question that is problematic, but the ascertainment of the

facts that constitute the case. Then the parties do not dispute about th e law on a case but

rather about the facts of the case themselves. This enquiry, however, will only focus on the

6 Entry: „paradox“ in: J. A. Simpson/E. S. C. Weiner (eds.), The Oxford English Dictionary Vol. XI (1989);

Franz von Kutschera, Paradox, in: Joachim Ritter/Karlfried Gründer (eds.), Historisches Wörterbuch der Phi-

losophie Vol. 7 (1989), col. 96; Van n Mc Gee , Logical Paradoxes, in: Donald M. Borchert (ed.), Encyclopedia of

Philosophy Vol. 5 (2006).

7 Entry: „Antinomy“ in: Philip W. Goetz (ed.), The New Encyclopaedia Britannica Vol. 1, (1985), 458; Ent ry:

„Antinomy“ in: J. A. Simpson & E. S. C. Weiner (eds.), The Oxford English Dictionary Vol. I (1989);

Kutschera, (n. 6), col. 96; Andrea Cantini, Paradoxes and Contemporary Logic, Stanford Encyclopedia of Phi-

losophy, http://plato.stanford.edu/entries/paradoxes-contemporary-logic/, last acce ss: 25 April 2015.