General Reference Clauses in the Judicial Process

Context of Legislative Intentions and Interpretative Discretion

by Leszek Leszczyński (Author)
©2021 Monographs 268 Pages
Series: Ius, Lex et Res Publica, Volume 19


The purpose of this work is to analyze the functioning of extra-legal references (general clauses) in the context of the relation between the legislative policy of opening the legal system and judicial discretion in the field of law interpretation. This publication is based on the analysis of normative acts (in Poland and other selected European countries) and judicial decisions (mainly Polish). The result of the study is an attempt to settle the scope of judicial discretion in determining the content of reference criteria, the basis for their application, and their role in various stages of the process of judicial interpretation of the law. The book concludes with an attempt to construct a comparative and an optimization model of the functioning of general clauses in the legal order.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Introduction
  • Chapter I Extra-legal references and legislative intentions
  • 1. The legal system and its opening
  • 1.1. Methods for opening the legal system
  • 1.2. Legislative instruments of opening the legal system
  • 2. General reference clauses
  • 2.1. Some examples
  • 2.2. The concept and its constituents
  • 2.3. Extra-legal referencing and its direction
  • 2.4. Reference clauses and legal principles
  • 3. Extra-legal reference as a component of legislative policy
  • 3.1. References and rationality of legislation
  • 3.2. Purposes of referencing to the extra-legal criteria
  • 3.3. Initial conditions for legislative “reference policy”
  • 4. Measures for legislative influence on the use of extra-legal references
  • 4.1. Selecting the name of the extra-legal criterion
  • 4.2. Locating the reference clause in the system of legal regulations
  • 4.2.1. Horizontal structure of the legal system
  • 4.2.2. Vertical structure of the legal system
  • 4.2.3. Systematics of a normative act
  • 4.2.4. Type of normative regulation
  • 4.3. Determining the conditions for the use of extra-legal criteria
  • 5. Basic factors differentiating the legislative policy and its effects
  • Chapter II The basis for the use of extra-legal reference in the judicial decision-making process
  • 1. Extra-legal reference as a validation argument for an operative interpretation of the law
  • 2. Direct application of the general reference clause
  • 2.1. The use of references and the type of legal act containing the clause
  • 2.2. The use of references and the type of legal regulation containing the clause
  • 2.3. Application of references of international and supranational law
  • 3. “Borrowing” a reference per analogiam clausulae
  • 3.1. Borrowing the clause from specific provisions (per analogiam legis)
  • 3.2. Borrowing a clause from general (“supplementary”) provisions
  • 4. Special situations for applying extra-legal references
  • 4.1. The issue of non-application of a “binding” reference clause
  • 4.2. The problem of the application of a “non-binding” reference clause
  • 4.2.1. Use of reference that is “not yet in force”
  • 4.2.2. Use of reference that is “no longer in force” (formally repealed).
  • 4.2.3. Use of foreign law references
  • 4.2.4. Borrowings and the judicial discretion
  • 4.3. The issue of “jurisdictional creating” of an extra-legal reference
  • Chapter III Determining the content of the extra-legal criterion
  • 1. References to facts and references to values (assessments)
  • 1.1. Determining the content of references to facts
  • 1.2. Determining the content of evaluation referrals
  • 2. Determining the content of general reference clauses
  • 2.1. Identification of the components of the referring clause name
  • 2.2. Selection of the type of criterion and the type of axiology
  • 2.2.1. Political values
  • 2.2.2. Economic values
  • 2.2.3. Moral values
  • 2.2.4. Differentiating factors
  • 3. Effects of combining the content of extra-legal criteria
  • 3.1. “Mutual supporting” (enhancement) of extra-legal content
  • 3.2. Creating and solving collision relations
  • 3.2.1. Collisions within the single-type criteria
  • 3.2.2. Collisions between different types of values
  • 4. Comparing the content of extra-legal criterion with intra-legal axiology (“juridization”)
  • 5. “Normativization” and “concretization” of the content of the extra-legal criterion
  • Chapter IV The extra-legal references in the process of judicial interpretation of law
  • 1. Operative judicial interpretation in the process of application of law
  • 1.1. Law application process – the decisional model
  • 1.2. Operative interpretation of law and its phase sequence
  • 2. Influence of extra-legal axiology on preliminary interpretative findings (orientation phase)
  • 3. Impact of extra-legal references on the application of other legal carriers (validation phase)
  • 4. Participation of extra-legal references in the reconstruction of behaviour patterns (reconstruction phase)
  • 5. Participation of the extra-legal references in building the normative basis for decision (construction phase)
  • 5.1. Features of the construction phase
  • 5.2. Basic course
  • 5.3. Inferential course
  • 5.4. Collision course
  • 6. Impact of extra-legal references on the content of judicial decision (decisional reduction phase)
  • 6.1. Features of the reduction phase
  • 6.2. Share of open criteria in the qualification of the facts of the case
  • 6.3. Open criteria in establishing the normative consequences of qualification of facts
  • Chapter V Some comparisons
  • 1. Type of legal culture
  • 1.1 European culture of statutory law (case of Germany)
  • 1.2. The references in common law and in the Japanese legal order
  • 2. Type of social and political environment of law
  • 2.1. The autocratic and democratic political system
  • 2.2. References in a situation of social change
  • 3. Place of the references in the structure of the legal system
  • 3.1. Systematics of a legal act
  • 3.2. Type of normative act
  • 3.3. Type of branch of law
  • 3.3.1. Branches of the domestic law
  • 3.3.2. International law
  • 4. Type of decision-making practice
  • 4.1. Type of law application
  • 4.2. Type of court and decision of the court
  • Chapter VI Functions of references and their optimization models
  • 1. Functions of references (the issue of dialogue between legislature and judiciary)
  • 1.1. Opening (“deformalizing”) the content of the law
  • 1.2. Extending the decision-making discretion in applying the law
  • 1.3. “Axiologization” of the process of applying the law
  • 1.4. Review of detailed interpretative functions of extra-legal references
  • 2. Outline of optimization models
  • 2.1. Optimizing model for creating extra-legal references
  • 2.2. Optimizing model for applying extra-legal references
  • 2.3. Reference clauses and the axiology of judicial discretion
  • 2.4. Appendix: optimizations and the Polish legal order after 1989
  • Bibliography
  • List of abbreviations
  • Series index

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1. The monograph,1 containing an analysis of the functioning of axiological extra-legal references expressed in general clauses is based on two assumptions. The first of them is that this type of reference constitutes a common means of normative expression today, appearing as an instrument of legislative policy regardless of the type of political system in which the law is created, and regardless of the type of branch of law to which the said legislative activity relates. The second assumption, in turn, raises the frequency of the use of this normative structure by courts and administrative bodies in the processes of applying the law, not excluding taking the extra-legal criteria into account by the ordinary addressees when exercising their own subjective rights.

The presence of extra-legal references in contemporary legal systems, initiated by the so-called great European civil law codifications of the nineteenth century (which included, among others, references to the criteria of customs, equity, good faith, good manners or public order), altered the form and content of law. By changing the linguistic properties of legal texts, it opened the content of the law to social, political and economic norms and values. By saturating the processes of creating and implementing law with axiology, it significantly broadened the scope of judicial decision-making freedom. References thus become the most “informal” and sensitive component of legal discourse, both in the context of its ties with social discourse, and its susceptibility to the influence of political discourse.

The main objective of the present work is to define the relationship between the intentions of the legislator creating purposefully extra-legal references as part of statutory law order and the use of the axiological decision-making discretion by the organs applying the law. The way in which this freedom is exercised in judicial application of the law substantially affects not only the functioning of the extra-legal references themselves, but also the functioning of the entire legal order. Hence, so important for the shape of the model of this relationship is the real independence of judiciary, which, within the legal discourse, ultimately determines the effects of referring to extra-legal values and norms. Its lack or ←11 | 12→even a limited scope creates the advantage of political discourse over legal discourse, regardless of whether it is about the general dimension of the law or its specific elements.

The study has been prepared on the basis of the application of an analytical research method, leading to the development of appropriately generalized comparative conclusions and an attempt to outline an optimization model for the legal order of a democratic rule of law state. It is based on theoretical legal literature, both Polish and foreign. The purpose of analyses, however, was not polemics with individual approaches and doctrinal statements, quoting them merely in the context of emphasizing the presence of the issue in the theoretical discourse. This is because the statements formulated in the present work have been built on the base of author’s own jurisdictional experience (as the judge of The Supreme Administrative Court in Poland) as well as on analysis of normative regulations and various courts’ decisions (or actually – their justifications) in which references appear. Evidently, the majority of examples are taken from the Polish legal order (embracing judicial practice of both before and after 1989 periods), although legal orders of other countries (mainly European ones), as well as the jurisprudence of the European Court of Human Rights, were also referred to.

2. Extra-legal references have impact on all components of the law application process, shaping its autonomy in relation to legislative activities. They appear already in the process of establishing the facts of the case (where their influence is still relatively small), only to play a fundamental role in the various phases of operative interpretation of the law made in the decision-making process. By linking its participation in it with the determination of the basis for the application of the clause and with the determination of the content of the extra-legal criteria contained therein, the references are included in all interpretative activities leading to the construction of a normative basis for a decision, later reduced to the decision of application of the law itself.

The structure of the present work, consisting of six chapters, serves the purpose of defining the relationship between legislative intentions and axiological decision-making discretion in the processes of applying the law. The first one concerns the creation of references, the subsequent three – their application, while the last two are devoted to essential comparisons and generalizations, both descriptive and optimizing.

Chapter I presents the issue of creating extra-legal references in the form of general clauses, which are an example of an intentional normative structure forming an element of legislative policy, which, in turn, may assume various specific purposes of references. Its subject is the analysis of various linguistic forms ←12 | 13→of clauses, their localization within the regulatory system and the determination of the initial conditions for the functioning of references, which is to help determine the scale of the legislator’s (acting in various political systems) influence on the use of references.

Chapter II analyses the grounds for including an extra-legal reference in a process of applying the law, assuming that the use of the clause is determined by the decision-making need. A reference may be used in various ways, among which its direct application from a legal provision regulating the respective facts of the case (specific provision) is admittedly the basic method, albeit only one of the few possible. It is also necessary to distinguish between indirect applications (“borrowing” references) from other applicable legal provisions (specific or general ones) and the use of references that are not grounded in the applicable provisions, which broadens the scope of the decisional freedom.

The broadest scope of discretion however is connected with, analysed in Chapter III of the study, determination of the content of extra-legal criteria expressed in the reference clause. This reasoning manifests itself primarily in linking the content of these criteria in various combinations of moral, political or economic axiology, largely regardless of the verbal form of the referring clause. What is not without significance for the final result of these content determinations is the possibility of combining these types of axiology (in various configurations, including collision relations) as well as its “juridization,” “normativization” and “concretization” in the context of the properties of the established facts of the case, which constitutes a kind of verification of general axiological content.

Specifying the basis for the application of the clause and determining the content of the criteria leads to the inclusion of references in the operative interpretation of the law. The role of references in reasoning and interpretative activities is the subject of Chapter IV. It manifests itself first in the form of the participation of extra-legal criteria in the so-called interpretative orientation, then modification of the basis for the application of legal provisions (after all, they play the role of the basic carrier of law in the culture of statutory law) and modification of the process of reconstruction of the legal norms contained therein. The patterns of behaviour interpreted in this way, containing some element of extra-legal axiology, then participate in the construction of the final normative basis of the decision, which will ultimately be reduced to the content of the decision on the application of law with regard to the qualification of the facts of the case and the determination of its legal consequences.

The work ends with two chapters, which are in a way summarizing its detailed arrangements, relating both to the creation and application of extra-legal references.

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The assumption of the analyses carried out in Chapter V is the need to capture not only universal relationships, but also to take a relativistic view that creates the comparative conclusions. The factors that structure this image are: the type of legal culture (which makes it possible to perceive the role of extra-legal references also in orders different than the order of statutory law), the type of social environment of law (indicating the differences in these roles in the democratic and autocratic political system and the specificity of the situation of deep social change), the location of references within the legal system (especially their place in the structure of the normative act and in the vertical and horizontal structure of the legal system) and the type of decision-making practice (indicating the distinct features of the administrative type of application of law and the differences in the application of references by different kinds of courts).

In Chapter VI, which concludes the work, there is room for generalizations regarding the functions performed by references in the order of statutory law. The three main effects of the clauses: of opening up and “deformalizing” the legal content, of broadening the decision-making discretion and of “axiologizing” the entire legal order, has been here emphasized. The result of these generalizations is an attempt to come with a draft of an optimization model relating both to the creation and application of extra-legal references in a democratic rule of law state, an element of which is an independent judiciary, undeniably playing the most fundamental role here.

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Chapter I Extra-legal references and legislative intentions

1. The legal system and its opening

1.1. Methods for opening the legal system

The relations between formal and informal components of the legal order constitute an important element of development of law. It is also not unanimously settled in the history of law and legal thought. Within its framework attaching greater importance to formalistic elements is intertwined with periods, when greater importance was given to elements directly “detaching” from the form of law (the letter of the law). For example, the analysis of the way law is understood and its role in pre-state societies and societies that organize simpler organizational forms of the state clearly gives us the impression of the dominant role of customs and moral norms as the basis for making “legal decisions” in specific matters concerning the life of individuals and the functioning of the community.1 On the other hand, early state codifications (e.g. the Code of Hammurabi), leave no doubts as to the then dominant casuistic way for regulating social reality at that time, which necessitated the attribution of decisive importance to the formal method of determining the behaviour of community members and their control.2

The primary form for opening legal regulations is the gradual departure from the casuistry of regulations and the use of abstract names (having no designates in the realm of real phenomena) or generalized specific names, which can be attributed to the feature of being inexplicit and vague. Especially the latter form for construction of legal language, due to the complexity of its semantic structure, may be associated with the concept of the legislator who, unable or unwilling to specify the content of these names, opens the linguistic dimension of the content of law. This may take place when the legislator creates a legal term3 that does not coincide with the expression found in the common language, sometimes associating with it a specific general meaning (as developed by the doctrine and judicial practice), and not always fit for precise definition. The imposition of the ←15 | 16→content of such a term for the purposes of the decision-making process requires reference to certain facts and events so that the elements of such a concept (e.g. attempt, necessity) can be precisely determined. The requirement to refer to elements that are not specified by the legal text in this case is related to the properties of both the common language and the legal language. This also applies to terms with axiological properties (e.g. pluralism, impartiality or independence).

(2) We can distinguish two basic trends within the history of law, as to the way in which extra-legal criteria may be included in the legal order. Both of them, without abandoning the emphasis on intra-legal values, assume that in order to achieve some satisfactory state of flexibility of law and its adequacy in relation to changing relations, assessments and social norms, it is necessary to apply such criteria in the process of creating, implementing and functioning of the law (in the context of the methods for determining behaviour and measures of its control), which are neither prescribed nor more precisely defined by applicable regulations.

The first method of “opening the law” consists in the establishment of special bodies reaching their decisions directly on the basis of extra-legal criteria. They function “alongside” the regular judicial bodies, creating a kind of “competitive” system for making legal decisions. It includes both the activity of the praetor in Roman law, who made decisions based on customary norms or the principles of equity (ius aequitas),4 as well as the institution of iudicium aequitas, which was present in early feudal Europe, identified with, among other things, the judicial powers of the Frankish kings as the supreme guardians of justice.5

The practice of resolving disputes by Court of Chancery on the basis of informal rules of equity under the English legal order, and then adopting some of its solutions to the legal order of the American colonies and the USA, developed in the sixteenth century, was similar in its character.6 To some extent, the continuation of this practice can be seen in contemporary mediation practices within the framework of alternative dispute resolution (ADR).7

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The second way for “opening the law” consists in the deliberate introduction, by the legislator, of appropriate words, terms, concepts, or entire phrases to the text of statutes and other normative acts, which authorize entities making decisions on the application of law to take into account the criteria expressed (formulated) in provision, albeit undefined and non-determined. It is a method characteristic of the continental legal culture (or the part of Anglo-Saxon law tradition that is regulated by statutes). These constructions include references to extra-legal criteria in the regulations, mainly in the form of general referring clauses (e.g. principles of equity, good manners, social interest) and estimated reference clauses (e.g. important reasons, due diligence). They are purposeful and related to a particular legislative policy.8 Their first systematic use took place in the nineteenth-century codifications of civil law (Code Napoleon of 1804, Austrian ABGB of 1811, German BGB of 1896 or the Swiss ZGB of 1907).


ISBN (Hardcover)
Publication date
2021 (September)
extra-legal references legislative policy judicial interpretation judicial autonomy differentiating factors optimizing the functioning of clauses
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2021. 268 pp.

Biographical notes

Leszek Leszczyński (Author)

Leszek Leszczyński is Professor of law, Head of the Chair of Theory and Philosophy of Law and Director of the Institute of Legal Sciences at Maria Curie-Sklodowska University in Lublin (Poland). He presided as judge of the Polish Supreme Administrative Court, and authored publications on the interpretation and application of law, human rights and comparative law.


Title: General Reference Clauses in the Judicial Process
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