Determining and Reflective Judgments: Two Approaches to Understanding Legal Decisions

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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
DOI : 10.11590/abhps.2019.3.02
Determining and Reective Judgments:
Two Approaches to Understanding Legal
Decisions
Diego Pérez Lasserre
Universidad San Sebastián
General Lagos 1163,
Valdivia 5090000, Chile
E-mail: diego.perezl@uss.cl
Abstract: This article examines legal judgments in light of the two ways that,
according to Kant, the Power of Judgment operates. After analyzing both
uses of this faculty, it justies that legal decisions can be considered as a
type of reective judgments, but not as exemplary as the ones treated in the
Critique of the Power of Judgment—namely, the aesthetic and teleological.
Keywords: determining judgments, legal decisions, Kant, reective judgments
is decade seems to be one seeing a re-emergence of board games. It is not strange
that young adults gather every weekend to spend a couple of hours submerged
in the ludic nature of games such as Catan and Monopoly. From the wide range
of these, there are two that have caught our attention: Dixit and What Do You
Meme? In Dixit, one of the players has to give a concept, and the rest must try to
nd an image that is suitable for that concept. e player who, according to the
“concept giver”, has found the most suitable image wins. What Do You Meme?,
on the other hand, operatesin inverseorder. Here the rst player must provide
an image, while the rest of them must try to nd an adequate concept from a
limited number of “concept containing cards”. e player who, according to the
“image giver”, has provided the most suitable concept for the image wins.
ese games have caught our eye because in them it is possible to identify
the two ways the power of judgment operates according to Kant. Indeed, we
can relate, to some extent, Dixit with the determining judgment, where the
universal (in this case, the concept) is given, and the particular (the image) must

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Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
be subsumed under it.1 We can see that there is a similarity between the rules of
What Do You Meme? and the way reective judgment operates: the particular
(the image) is given, and the universal (the concept) is to be found (Cf. CJ, FI,
IV, 5:180). Although Kantians will immediately identify inconsistencies between
these board games and the way judgment operates, they do provide an overall
picture of the dierences between them.
e good thing about the analysis of these games in light of determining and
reective judgment, especially in the case of the latter, is that it is possible to
think that it would be acceptable for Kant. is is because, as Burnham has
stated, he did not limit reective judgment to the aesthetic and teleological.
In fact, these judgments are only “exemplary of what Kant calls reective
judgments—judgments which proceed without a concept” (Burnham, 2000,
p.40). erefore, it would not be necessarily incorrect to state that What Do
You Meme? is exemplary of how reective judgments operate as well (although
not as radically exemplary as aesthetic judgments2).
e question that will be addressed in this work, however, is not that of the
reective nature of a board game (although it is directly related to it). e
article will argue that it is conceivable to make a similar analysis of how legal
understanding operates. In particular, it will justify that if we take the way these
judgments operate, it is possible to identify two modes of understanding how
legal decisions are made—a determining and a reective.
An analysis of this nature makes it necessary to see if it is legitimate to extend what
Kant says in his Critique of the Power of Judgment to legal thought. erefore, in
what follows, an attempt will be made to answer this question according to the
following structure: rst by providing an overall picture of what Kant means by
the power of judgment and its dierent uses (I). en, the article will review the
legitimacy of extending determining (II) and reective (III) judgments to legal
understanding. Finally, some conclusions are drawn (IV).
1 Cf. Critique of the Power of Judgment (hereafter CJ), First Introduction (hereafter FI), IV, 5:180.
e translation follows that in Kant, 2009a.
2 Burnham (2000, p. 40) says, “Aesthetic judgments are the most radical kind of reective
judgments”.

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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
I A brief review of Critique of the Power of Judgment
Kant starts his Critique of Pure Reason by stating that “there is no doubt whatever
that all our cognition begins with experience”.3 In a similar sense, we may say
that there is no doubt whatsoever that every legal decision starts with a particular
case that needs a solution. Particular cases are a condition of possibility for legal
decisions. e problem, however, is the following: how does a judge arrive at
that solution? is is a long-standing problem in legal philosophy to what most
thinkers have dedicated hundreds of pages. Immanuel Kant is no exception. It
is a well-known fact that he addressed this problem in his Metaphysik der Sitten.
However, this is not the only text where a legal thought can be identied in
Kant’s work. As Herrero has pointed out, “usually when it comes to talking about
Kantian [legal] philosophy, commentators turn to the theory of natural law and
[...] lose sight of the most interesting question: the philosophy of Kantian law of
the faculty of judgment” (Herrero, 2012, p. xxxi). at is, according to Herrero,
Kant’s Kritik der Urteilskraft can be read in terms of legal philosophy.4
is statement, though interesting, poses a question that must be answered prior
to any analysis of legal thought—namely, is it admissible to extend the distinction
between determining and reective judgments to legal decisions? Using the
famous Kantian legal metaphor, as Burnham (2000, p. 21) has called it, we must
ask ourselves why we should believe that this distinction has jurisdiction over
legal understanding. Before addressing this matter, let us review the dierences
between these two types of judgments.
As we have already pointed out, Kant “describes two dierent ways in which
judgment can operate: depending upon whether it is rst furnished with a
universal or a particular, judgment may be ‘determinant’ or ‘reective’” (Guyer,
1997, p. 35). e faculty of determining (or determinant, according to the
translation used) is the capacity to apply already given pure concepts (a priori)
to appropriate particulars (Guyer, 1997, p. 35). In other words, the whole
purpose of this type of judgment is to bring intuitions under concepts to make
the experience of phenomena possible. In Kant’s words: “If the understanding
in general is explained as the faculty of rules, then the power of judgment is
the faculty of subsuming under rules, i.e., of determining whether something
stands under a given rule (casus datae legis) or not” (CPR, A132/B171). Let us
3 Critique of Pure Reason (hereafter CPR), B1. e translation follows that in Kant, 2009b.
4 Rasch says something similar in Rasch, 2004.

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Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
explain this a bit. Human beings, Kant argues, are inevitably doomed to acquire
knowledge of reality through our senses. We need something external, that is
part of the “objective reality”, to present itself to our senses in order to procure a
representation of a phenomenon (through a process that he calls ‘schematism’).
Our perception of the world is not productive (by merely thinking something
it becomes real), but sensitive (things are imposed on us). e intellect takes
part in knowledge, but not in an intuitively creative way, but in a discursive
one. In order to know the world, sensitivity must provide us with intuitions,
that is, with “data” that comes from experience. Once this has happened, our
understanding takes that data, “processes” it, and produces a concept (CPR,
B59–B73). If nothing is presented to our senses, no knowledge is possible; and,
if our understanding does not process the data supplied by our senses, the world
is presented as amorphous chaos. In Kant’s words, “thoughts without content are
empty, intuitions without concepts are blind” (CPR, A51/B75).
According to Kant, in order to “process” the data supplied by sensible experience,
we need a series of “rules”, which he calls categories, that allow us, the recipients
of the intuitions, to “order” what is presented to our senses. Categories can be
thought of as mental concepts that contribute to the formation of phenomena.5
Now, from where do we get these concepts? In his work, Kant does not inquire
about the origin of the categories but rather is of the idea “that knowledge of
sensible reality is only possible if the necessary concepts (such as substance) are
already given” (Burnham, 2000, p. 5). In the same sense, Zuckert arms that
in the Critique of Pure Reason Kant establishes “that we have some necessary,
universal knowledge of nature: the categorial principles are laws governing all of
nature, necessarily, and are such because they are necessary conditions for our
knowledge of nature and for the possibility of experience” (Zuckert, 2010, p.11).
Simply put, in determining judgment we already possess a series of concepts
(categories), and the job that is left for the power of judgment is simply to apply
those given concepts to the particulars provided by intuition.6 e process, then,
is merely mechanical: intuitions are subordinated under universal pre-given (a
priori) categories (Makkreel, 1994, p. 54).7
5 Concepts, in the case of understanding, are called ‘categories’, cf. Burnham, 2000, p. 14.
6 e question of how these concepts are applied to intuitions is answered by Kant in his
‘Deduction of the Pure Concepts of the Understanding’.
7 It should be considered that the description made here is a simplication, since one of the great
problems Kant faces is how the subject emerges from himself, from his subjectivity, and applies
the categories to the intuitions provided by the sensitivity. is, in fact, led him to almost
completely modify the ‘Transcendental deduction’ (CPR, A84–130, B116–169) in the second
edition of his Critique of Pure Reason. It is still discussed today whether Kant managed to justify
this matter properly.

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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
In reective judgments, on the other hand, what is given is a particular, and what
must be found is the appropriate universal (Guyer, 1997, p. 35). As Burnham
says, “Kant calls both the aesthetic and the teleological judgments ‘reective’
to indicate that a determining concept (which accords with the principles of
the understanding) never enters the equation” (Burnham, 2000, p. 28). In
other words, reective judgment does not supply any of the conditions for the
possibility of experience but rather is confronted with an already conformed
phenomenon from which it intends to nd a universal (concept) from that which
is left undetermined by the determining judgment. Kant assumes that nature is
not a random chaos, but is organized according to a certain systematicity. In his
words,
under the government of reason our cognitions cannot at all constitute a
rhapsody but must constitute a system, in which alone they can support and
advance its essential ends. I understand by a system, however, the unity of
the manifold cognitions under one idea. […] e unity of the end, to which
all parts are related and in the idea of which they are also related to each
other, allows the absence of any part to be noticed in our knowledge, and
there can be no contingent addition or undetermined magnitude of perfection
that does not have its boundaries a priori. (CPR, A832–833/B860–861)
Determining judgments explain a certain aspect of phenomena (the conditions
of possibility of experience) but fail to explain other features, such as their beauty.
ese aspects are left undetermined, and what reective judgment intends to do
is to provide the concepts (universals) that “govern” these aspect of existence.8
However, as we learned from the Critique of Pure Reason, human knowledge has
boundaries, and these concepts (the ones that the reective use of the power
of judgment pursues) are located beyond them. erefore, we cannot fully
grasp them, and must merely assume that if they exist, they were given by a
supersensible understanding (God). erefore, when talking about the concepts
(universals) that the reective use of the power of judgment intends to grasp, we
are locating our object of study in the eld of the supersensible, eld where no
knowledge is possible for human beings. us, as Kant says, “it is a eld that we
8 In this sense, in the ‘First Introduction’ of the Critique of the Power of Judgment, Kant states
that “particular experience, thoroughly interconnected in accordance with constant principles,
also requires this systematic interconnection of empirical laws, whereby it becomes possible for
the power of judgment to subsume the particular under the general, however empirical it may
be, and so on, right up to the highest empirical laws and the forms of nature corresponding
to them, and thus regard the aggregate of the particular experiences as a system of them; for
without this presupposition no thoroughly lawlike interconnection, i.e., empirical unity of this
experiences can [be] (sic) obtained” (CJ, FI, II, 20:203).

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Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
must certainly occupy with ideas […] [and] our theoretical cognition is not in
the least extended to the supersensible” (CJ, Introduction, 5:175). As Kant says in
the Prologue to the second edition of the Critique of Pure Reason, “I had to deny
knowledge in order to make room for faith” (CPR, xxx).
It must be noted, however, that the distinction between determining and
reective judgments does not mean that one excludes the other. On the contrary,
“determinant judgment seems to set the agenda for reective judgment”
(Makkreel, 1994, p. 170). In the same sense, Guyer arms “the categories
alone do not fully determine the individual laws of nature discovered by natural
science. […] e categories need to be supplemented only by the strictly
empirical method of induction” (Guyer, 1997, p. 37). Zuckert says something
similar when stating that Kant argues that categories
are not sucient conditions for either: they do not provide knowledge of
the given, particular character of objects, nor do they guide us as to how we
ought to discern some order in nature with respect to those characteristics.
Yet, unless we have some way of ordering the diversity in nature, we will
have no knowledge of nature beyond that the categorical principles apply to
it. Indeed we might be incapable of having any coherent experience at all,
for we would be overwhelmed by natural diversity. (Zuckert, 2010, p. 12)
In other words, the determining use of the power of judgment allows us to
order the chaos presented by the intuition through the schematization of the
data provided through sensible experience so that we are able to make sense of
the world and acquire knowledge of it. If we were not able to distinguish one
phenomenon from another, or make sense of the data provided by sensitivity
under basic conditions which allow the possibility of knowing an object (such
as quantity and quality), we also would not be capable of considering certain
phenomena as beautiful or as part of a teleologically ordered whole (which, as
we will explain in Section III of this work, is a matter of the reective use of the
power of judgment).
In sum, the determining use of the power of judgment, on the one hand, provides
the a priori concepts for the understanding (the categories), but on the other, set
the limits for our knowledge and denes what is left undetermined in sensible
experience for us to investigate with the reective use of the power of judgment.

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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
II Determining judgment and legal understanding
Having provided an overall picture of how the determining and reective uses of
the power of judgment operate, let us return to our apparently forgotten question:
is it admissible to extend the distinction between determining and reective
judgments to legal understanding? To answer this question, it is necessary to
analyze the legitimacy of extending each of these uses of the power of judgment
to legal judgments separately. We will start with determining judgments.
As we have already seen, the determining use of the power of judgment allows us
to have sensible experience. In every act of knowledge, two poles are confronted:
one that is real, through which our senses are presented with a manifold of
representations, and another that is ideal, through which that manifold is ordered
according to concepts (categories) that are located in our understanding. e role
of determining judgments is to apply the concepts that are located in the ideal
pole to the manifold that is presented by the senses. at is, to subsume that
which is provided by the real pole under the categories of understanding for us
to experience things as phenomena. Kant says that this subsumption takes the
name of synthesis (CPR, B130–131).
Having said that, it seems unlikely to extend the determining use of the power
of judgment to legal judgments. Why? Because every legal decision, the main
concern of this branch of knowledge, supposes an already synthesized world. In
other words, if the world were presented to us as a chaos of un-synthesized sensible
representations, no knowledge (and therefore no positive law) would be possible.
In that sense, the determining use of the power of judgment is a condition of
possibility of law and legal decisions (and consequently of legal philosophy).
Must we, therefore, abandon our aspiration of reading legal judgments in light of
determining judgment? Not necessarily, because we can still use a fundamental
aspect of these types of judgments to analyze legal decisions, namely, the way
they operate.
As we have already stated, when talking about the determining use of the power
of judgment, we are referring to a situation where we have a given concept,
and it must be applied to a particular case. In Kant’s words, it is “a faculty for
determining an underlying concept through a given empirical representation”
(CJ, FI, 20:211). In that sense, this faculty operates in a logical/mechanical way.
e process consists of merely tting the given particulars under the generality
of the concepts for obtaining a product: phenomenons. e equation, so to

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Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
speak, is already given, and the “job” left for the power of judgment consists
merely in replacing the variables. Furthermore, these “given concepts”, to be
considered properly as scientically obtained knowledge, must constitute,
according to Kant, a self-sucient and self-contained system which “can at the
same time yield a touchstone of the correctness and genuineness of all the pieces
of cognition tting into it” (CPR A65/B90).
In short, determining judgments operate under the logic of what may be identied
as the “classic scientic paradigm”, a model of understanding for which, as Alvesson
and Sköldberg (2009, p. 16) have pointed out, “science is ultimately intended to
systematize data of our experience” and according to which
something is put, set, placed or laid; this something is given facts or data, and
the one they lie in front of is the researcher. Data are consequently something
that exists, is (already) there, and the task of the researcher thus becomes to
gather and systematize them. (Alvesson and Sköldberg, 2009, p. 17)
Now, even though operating under the logic of the scientic paradigm is necessary
in order to acquire more knowledge of the sensible world (aspects of existence
that can be perceived by one or more senses), it is important to recognize that
other aspects of life, such as beauty, justice, the meaning of life, among others,
cannot be explained through science. ere is, however, a line of thought that is
usually referred to as scientism, which arms the universal applicability of the
scientic method and approach. at is, for scientism, reality is constituted by a
manifold of raw data that must be systematized into all-encompassing categories
that thereupon allow us to explain that same reality by subsuming what is given
under those omni-comprehensive concepts. In other words, scientism takes the
way Kantian determining judgments operate and arm that our whole reality
operates and can be explained under that logic.
Having this in mind lets us explain how the determining use of the power of
judgment may be extended to law and legal judgments. ough it cannot be
denied that these branches of knowledge suppose that we are confronted with
an already synthesized world (which is done, according to Kant, by determining
judgments), there are legal thinkers that have stated that legal decisions operate
in a similar, if not identical, way as the Kantian determining judgment. In other
words, we believe that the logic behind the determining use of the power of
judgment may be (and actually already has been) extended analogically to legal
thought. We are thinking specically in the line of thought that is commonly
known as positivism.

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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
ough many dierent thinkers and theories, each with their specicity, may
be identied or subsumed under the concept ‘positivism’ (and many may feel
uncomfortable or unjustly judged by this categorization), the concept ‘positivism’
generally refers to a line of thought that may be described as “any interpretation
of science (and of theoretical knowledge in general), which applies an assumption
equivalent to the statement by the well-known positivist Hempel, ‘Science is
ultimately intended to systematize data of our experience’” (Feyerabend, 1981,
p.16 seen in Alvesson & Sköldberg, 2009, p. 16). Put dierently, positivism takes
as the cornerstone of its methodology the Kantian assert made in his Critique of
Pure Reason that, in order to be considered successful, every branch of knowledge
must follow the secure course of a science (cf. CRP, BVII ).
Now, how does positivist thought manifest itself in law? To give us an idea of
legal positivism, let us review how Hans Kelsen, one of the great positivists in
legal though, starts his famous Pure eory of Law:
e Pure eory of Law is a theory of positive law. It is a theory of positive
law in general, not of a specic order. […] As a theory, its exclusive purpose
is to know and to describe its object. e theory attempts to answer the
question what and how the law is, not how it ought to be. It is science of law
(jurisprudence), not legal politics.
It is called a ‘pure’ theory of law, because it only describes the law and
attempts to eliminate from the object of this description everything that is
not strictly law: Its aim is to free the science of law from alien elements. is
is the methodological basis of the theory. (Kelsen, 2005, p. 1)
In other words, legal positivism limits its object of study to legal categories (or
norms) and eradicates anything alien to it, such as ethics or politics. Even though
Kelsen says that his approach to law is merely descriptive, his theory is actually
prescriptive. He provides a theory of legal interpretation, as well as a way of
understanding the legal phenomenon. Now, even though we do not intend to
delve into Kelsen’s thought, we will use some aspects of his theory as exemplary
for explaining the logic behind legal positivism.
From a methodological point of view, positivism considers that nothing is left
undetermined by legal norms. is is because the undetermined elements are not
relevant for scientic knowledge. In Kelsen’s words:
uncritically the science of law has been mixed with elements of psychology,
sociology, ethics, and political theory. […] e Pure eory of Law undertakes

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Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
to delimit the cognition of law against these disciplines, not because it
ignores the connection, but because it wishes to avoid the uncritical mixture
of methodologically dierent disciplines (methodological syncretism) which
obscures the essence of law and obliterates the limits imposed upon it by the
nature of its subject matter. (Kelsen, 2005, p. 1)
In other words, legal positivism does not deny that there are extra-normative
elements in the legal phenomenon, such as ethics or politics, but it does not
consider them relevant for approaching law in a scientic manner.
From a hermeneutical perspective, legal positivism arms that the procedure
judges must follow when applying law is of a logical nature and functions
mechanically. e judge must limit his labor to verifying if what happens in the
factual or empirical world correlates with what is described in the legal norm.
“at means, […] [if ] the contents of actual happenings agree with a norm
accepted as valid” (Kelsen, 2005, p. 4). e judge is seen merely as a “machine”
entrusted with the responsibility of determining if the cases put before him are
adequate or not with what is established in the legal categories (a procedure that
sounds awfully similar to how determining judgments operate).
In conclusion, although legal philosophy supposes that there is an already
synthesized world, synthesis which is made by the determining use of the power
of judgment, it is possible to see that some legal theories, such as positivism,9
have adopted the way the determining use of the power of judgment operates and
stated that legal decisions work the same way. at is, they have limited the legal
phenomenon to legal categories (norms) and declared that the application of law
consists of a procedure of subsuming cases under the given legal categories—all
of this in the name of the goddess of knowledge: science.
9 We say “some legal theories”, because, as Bobbio (2015, p. 88) explains, naturalist theories of
law may also be considered as positive in their method if they arm that, to apply law, judges
must subsume the given cases under the ethical content of natural law.

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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
III Reective judgments and legal understanding
As we saw in the previous section, legal theories that adopt the way determining
judgments operate as the sole paradigm for legal understanding dispose of
everything alien to legal norms. is means getting rid of everything that belongs
to the real pole of existence that cannot be determined/subsumed by the legal
categories (exceptional cases, political circumstances, moral values, etc.). All
this under the premise that these undetermined elements are not relevant for
scientic legal knowledge (what we already identied as scientism).
is approach, however, seems to leave out a fundamental aspect of Kantian
philosophy, namely, that we must assume that what is left undetermined by the
determining use of the power of judgment is not merely chaotic, but must be
governed by a certain unity (even if we, as limited human beings, are not able to
grasp it). In Kant’s words:
since universal laws of nature have their ground in our understanding, which
prescribes them to nature […], the particular empirical laws, in regard to
that which is left undetermined in them by the forms, must be considered
in terms of the sort of unity they would have if an understanding (even if
not ours) had likewise given them for the sake of our faculty of cognition, in
order to make possible a system of experience in accordance with particular
laws of nature (CJ, 5:180).
In other words, if we are faithful to Kantian philosophy considered as a whole,
we must acknowledge his quest in the Critique of the Power of Judgment for
nding unity in what is left undetermined by determining judgment.
Before attending this topic, there is a need, nevertheless, to undertake another
quest, namely, that of determining the legitimacy of extending the reective
use of the power of judgment to law. As already mentioned at the beginning of
this work, in his Critique of the Power of Judgment Kant analyzes aesthetic and
teleological judgments not because they are the only reective judgments that
can be found in existence, but because they are exemplary of how this type of
judgment operates (Burnham, 2000, p. 40). e power of judgment operates in
a reective manner when the particular is given, and the universal is to be found.
Let me explain this a bit with an example. Imagine you are presented with a
landscape. After some contemplation, you arrive at the conclusion that it is the
most beautiful landscape that you have ever seen. How did you arrive at that

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Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
conclusion? One way of looking at it is to argue that we have in our mind the
concept of beauty and that the procedure followed by the viewer is one where
he or she simply must check whether the landscape corresponds to that concept.
at is, the viewer must verify if the particular case that is presented to him by
the senses can be subsumed under the pre-given concept of beauty. e problem,
however, is that, as human beings, we are unable to specify the conditions under
which a phenomenon is beautiful or not. In other words, we do not have an
already formed concept of beauty. e beauty of a phenomenon is presented
to us as a feeling of complacency that appears almost spontaneously, and not as
the conclusion of an intellectual procedure. In simple words, we do not know
what makes a phenomenon beautiful, but when we are faced with beauty, we
know it. e example given illustrates how reective judgments operate. What is
presented to us is an aspect of a phenomenon, its beauty (particular), for which
we do not have a concept (universal).10
As we already explained, Kant uses the aesthetic judgments as an example of
how reective judgments operate. erefore, it is not absurd to think that other
types of judgments may also be considered as reective. is leads us to our
next question: Is it admissible to consider legal judgments as reective? In what
follows, the article will try to justify that legal judgments can also be considered
as exemplary of how the reective use of the power of judgment operates. It
must be noted, however, that the analysis here is dierent from the one made
of legal decisions and the determining use of the power of judgment. is is
because, as already explained, positive law supposes that the determining use
of the power of judgment has synthesized the world we are perceiving, so the
study was limited to demonstrating that some legal theories have taken the way
determining judgments operate and stated that law, and legal decisions, operate
exclusively according to the same logic. Regarding the reective use of the power
of judgment, on the other hand, the article will justify that legal decisions are a
kind of reective judgment.
As mentioned at the beginning of this work, every legal decision starts with a
particular case that needs a solution. For legal theories that follow the paradigm
of the determining use of the power of judgment, what judges must do to solve
cases is to apply the legal categories available in the respective legal system to
10 Moreover, the concept of beauty, if it exists, is located beyond the limits of our knowledge. is
has, at least, two consequences: (1) We are unable to grasp such a concept (and any attempt to
specify the conditions under which a phenomenon is beautiful would be fruitless); and (2) we
can merely assume subjectively that if such a concept exists, it shared by all of humanity (what
Kant calls the sensus communis, CJ 5:180).

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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
the given cases. Judges then, must “t” the cases under the general and abstract
description contained in positive laws. e problem of this statement, however,
is that it does not seem satisfactory for explaining neither legal phenomenon
nor the task that judges must undertake when making a legal decision. One
of the main reasons for this is the following: as Gerhart Husserl has explained,
not only man is thrown into time and history, but also law (Husserl, 1955,
p.21 in Larenz, 2001, pp.137–138). In a similar sense, Emilio Betti explains
in his General eory of Interpretation that far from being situated outside of
time and history, law is “connected with the living and thinking spirit in such
a knot and way that conscience addresses itself to the values by an intimate
necessity, developing according to its own law of autonomy” (Betti, 2015, p. 35).
Even though a law is promulgated in a given historical time with the purpose of
solving a concrete problem or regulating a certain aspect of life in a community,
its existence endures through history. In other words, its lifetime does not end
when the problems that gave birth to the law is solved.
is situation presents a diculty to the judge: that of solving the tension
between a general and abstract text that responds to a former historical and legal
situation, on the one hand, and a new particular case that presents a current
problem that needs solving, on the other. As Derrida puts it,
[h]ow are we to reconcile the act of justice that must always concern
singularity, individuals, irreplaceable groups and lives, the other or myself as
other, in a unique situation, with [the] rule, norm, value or the imperative of
justice which necessarily have a general form, even if this generality prescribes
a singular application in each case? (Derrida, 1992, p. 17)
e solution that “determining legal theories”11 provide to this problem (cases
must be subsumed under legal categories) seems insucient mainly because of
two reasons: rst because it turns a blind eye to the historical character of law and
human existence by pointing out that particular cases have no inuence on legal
categories whatsoever. Second, because it assumes a narcissist attitude by believing
that a legal category is self-sucient in the sense that it provides a normative
framework that is able to encompass each and every singularity of future cases.
at is, it does not contemplate the possibility of an exceptional situation.12
11 By this we mean a legal theory that states that law operates in a similar way to determining
judgments.
12 Bobbio (2015, p. 96) points out that these are the reasons why nobody still believes that the
operations carried out by the judge to interpret the law are exclusively logical, that is, operations
that aim to deduce certain conclusions using predetermined premises.

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Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
As a result, we have that the logic of the determining judgment, where the
universal is given, and the particular must be subsumed under it, is not useful for
explaining legal judgments. So, what if we proceeded the other way around? at
is, what if we start from the particular case, with all its singularities, and then
ascend to the universal? What if, as Rasch says, we “propose […] that we look
at the emergence of norms as a supplement of legal decisions that retroactively
legitimate these decisions by posing as presuppositions” (Rasch, 2004, pp.96–
97)? In that case, the singularities from the particular cases would not be
considered merely as aspects that must be subsumed under legal categories, but
rather as elements that contribute to the conguration of the meaning and scope
of the law. In other words, the legal text does not remain untouched in the act
of its application but is rather re-congured according to the singularities of the
given case. As Gadamer puts it,
A law does not exist in order to be understood historically, but to be
concretized in its legal validity by being interpreted […]. is implies that
the text, whether law or gospel, if it is to be understood properly—i.e.,
according to the claim it makes—must be understood at every moment, in
every concrete situation, in a new and dierent way. Understanding here is
always application. (Gadamer, 2013, pp.319–320)
With this in mind, we can begin to understand why it is possible to support the
idea that legal judgment operates in a reective way.
e question that arises, however, is the following: if legal judgments operate
reectively, that is, they begin with the particular and then ascend to the universal,
what is the universal towards which they are “heading”? One possible answer is
to say that the end of the road is positive law, which then would be considered
as the “universal” that is grasped in this reective operation. e problem is that
this solution would lead us directly to what we criticized of legal theories based
exclusively on the way the determining use of the power of judgment operates,
namely, that we would be stating that legal categories are all-encompassing,
and allows us, through a reective procedure, to explain the legal phenomenon
completely. So, if the universal that is pursued in legal decisions are not the legal
categories, what are we left with? To answer this question, let us go back a minute
and review Kant’s theory of reective judgment. As Burnham explains, in Kant’s
pursuit of the universal for what is left undetermined by nature
[i]t has to be assumed that nature—insofar as it is governed by a set of
empirical laws—exists as if it were made for the human understanding.

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Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
Nature is assumed to be purposive by our judgment, in the sense of being on
the way toward something. is, then, is an a priori principle of judgment.
Of course, we are talking about a principle of judgment here, not the
understanding. So this principle does not provide knowledge about nature:
thus the ‘as if’ above. (Burnham, 2000, p. 31)
Put dierently, the universal that is sought by the reective use of the power
of judgment is one that our limited human minds cannot grasp and therefore
constitutes no knowledge whatsoever. at is why we can only assume that, if
such a universal exists, it is provided by a being of supersensible nature.
Let us now return to our analysis of the legal decision in light of reective
judgments and ask ourselves, do legal categories correspond to the universal
that Kant argues is pursued by this use of the power of judgment? Clearly no,
because legal categories, which are contained in legal texts, are entities of sensible
nature that can be grasped by our human understanding. Moreover, a line of
thought that has absolute faith in positive law assumes that judges are faced
with a stable reality, where the unexpected is not a variable to be considered. e
problem, however, is that reality is not how positivism assumes it to be. On the
contrary, though it is true that there is a certain level of “normality” or “stability”
in concrete life, it is also accurate to state that it is normal for the “abnormal”,
the “exceptional”, to emerge and break the scheme of normality. So, what is the
universal sought by legal judgment? If we follow Derrida’s deconstruction, we
must arm that it is justice. Derrida states that
[d]econstruction is justice. It is perhaps because law (droit) (which I will
consistently try to distinguish from justice) is constructible […] e
deconstructibility of law (droit), of legality, legitimacy or legitimation
(for example) makes deconstruction possible. e undeconstructibility
of justice also makes deconstruction possible, indeed is inseparable from
it. e result: deconstruction takes place in the interval that separates the
undeconstructibility of justice from the deconstructibility of droit. (Derrida,
1992, p. 15)
According to Derrida, law can be decomposed (deconstructed in Derrida’s
words), while the concept of justice cannot. Moreover, Derrida says that
justice is an experience of the impossible, while law is an element that seeks
to calculate, within its limited possibilities, the incalculability of justice (cf.
Derrida, 1992, p. 16). In other words, law is an instrument that intends to
constitute itself as a channel through which the unfathomability of justice can

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Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
emerge. Positive law does not pretend to tame justice, but rather is at the service
of it. erefore, given the fact that the concepts of law and justice cannot be
considered as synonyms13, applying a law through the operation of subsuming
the cases under the legal description may lead to a decision that is “legal”, but not
necessarily just (Cf. Derrida, 1992, p. 16). In sum, Derrida’s thought provides
us with two important elements for our analysis: that law is commensurable,
while justice is incommensurable. at is, positive law is prepared only to face
a stable and calculable situation (that which the text describes), while justice is
a more comprehensive concept that allows it to give a just solution even to the
exceptional case which is not contemplated by positive law.
is analysis allows us to postulate, under rm ground, that justice is the
supersensible concept towards legal decisions, considered as a type of reective
judgment, aim. is is because the given description of justice is consistent with
Kant’s account of the purposiveness towards which teleological and aesthetic
judgments, the most radically exemplary types of reective judgments, aim.
Indeed, Kant states that through the reective use of the power of judgment, we
do not obtain knowledge of the purposiveness of nature. On the contrary, what
we get constitutes a subjective judgment that is merely regulative in the sense
that, as Guyer explains, “it does not furnish actual concepts of objects, but only
certain goals for our system of concepts; and it prescribes these goals without any
denite specication of what constitutes their fulllment” (Guyer, 1997, p. 46).
Put in simple terms, if we sustain that what is sought by legal judgment is the
universal concept of justice, which due to its fathomless cannot be determined
by our limited human mind and therefore constitutes a subjective principle that
merely guides the activity of the judge, we are defending that legal judgments are
of a reective nature. Moreover, if we consider that legal judgments must take
into consideration not only legal categories, but also all that is left undetermined
by them (the singularities of particular cases), and seek a concept (universal) that
unies all of these elements (the manifold of experience), it seems reasonable to
claim that they operate reectively.
In conclusion, we believe that these characteristics allow us to argue that legal
judgments are a type of reective judgment, not only because of the way they
operate, but also for how they tend (subjectively) towards the supersensible
concept of justice.
13 In a similar sense, see Bobbio, 2002.

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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
IV Some conclusions
We began this journey by analyzing the rules of two games and stating that
they were, in quite a limited sense, exemplary of how the determining and
reective use of the power of judgment operate. en we made a turn and asked
ourselves if it was possible to make a similar, though more extensive, analysis of
legal judgments. e conclusions to which we arrived may be summarized the
following way:
For legal judgments to be possible, it is necessary for us to be faced with an
already coherent and synthesized world. at is, it is indispensable that the
determining use of the power of judgment is already operating. at leads us
to the conclusion that the readout that can be done of legal judgments in light
of determining judgment is merely comparative or analogous. In that sense,
we arrived at the conclusion that a particular line of legal thought, that is, legal
positivism, takes the way in which determining judgments operate and arm,
on the one hand, that legal categories (or norms) exhaust legal reality, and that
the task of the judges when applying law is merely that of subsuming cases under
the given legal categories, on the other. We also criticized that this line of thought
is not sucient because, though it recognizes that there are some aspects of legal
reality that are left out of the description of legal norms, it disposes of them in
the name of science. In simple words, we criticized the scientism, as Herrera puts
it14, that is implicit in this line of thought.
Regarding the reective use of the power of judgment and its relation to law, we
justied that legal decisions could be considered as a type of reective judgment.
erefore, in this case our analysis was not of a comparative or analogous
character. We rather justied, based on the necessary consideration that judges
must have of what is left undetermined by the legal norms and the pursuit of the
unity of the legally-manifold through the supersensible concept of justice, that
legal judgments can be considered as exemplary for how reective judgments
operate (we must insist, however, that they are not as exemplary as aesthetic or
teleological judgments).
A question that this investigation leaves unanswered, however, is the following:
If legal norms are insucient for explaining and exhausting legal reality, should
we not rather follow realist legal thought, eliminate laws, and banish the illusion
14 See Herrera, 2011.

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Diego Pérez Lasserre
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
of legal certainty?15. Our answer is negative. is is because, as Derrida explains,
though law is an element of calculation that is faced towards an incalculable
demand (justice), it is preferable to have some stability in law than to be
immersed in total chaos (Derrida, 1992, p. 16). To put it another way, it is
better to have rules that aim towards legal certainty, even though this will never
truly be accomplished, than to leave law and legal decisions in the hands of an
unrestricted decisionism. erefore, we can conclude that a “determining legal
logic”, so to speak, is necessary for law, but it does not exhaust the complexity
that is involved in legal judgments.
Finally, we have only to point out that the problem with which legal judgments
are faced, namely, that of the tension between a general and abstract rule and
several particular cases each with their own singularity, is the same as that of
understanding in general. Indeed, as Tarello points out, legal norms are nothing
but a set of concepts, and concepts always have a degree of indetermination
(Cf. Tarello, 2017, pp. 97–98) that is solved at the moment of their application
to a particular case. erefore, given the fact that we inevitably understand
through language (on this see Gadamer, 2013, pp. 401–423), all understanding
is presented to us as a tension between a rule (a concept) and a case to which it
is to be applied.
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Determining and Reective Judgments:
Two Approaches to Understanding Legal Decisions
Acta Baltica Historiae et Philosophiae Scientiarum
Vol. 7, No. 3 (Autumn 2019)
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Diego Pérez Lasserre is a professor and researcher at Universidad San
Sebastián in Valdivia, Chile, where he teaches philosophy of law and private
law. He has published a considerable amount of papers on how philosophy
can help generate new interpretations for positive legal texts. He is also a PhD
candidate in philosophy at Universidad Diego Portales and FernUniversität in
Hagen (Germany), with studies that are funded by CONICYT (CONICYT-PCHA/
Doctorado Nacional/2019-21190052).