Seite - 98 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 98 an unclear question of law. When dealing with unclear questions of law, it is useful to clarify your course of conduct and mode of thinking. Step 4: Weigh the different arguments and decide on how to use them by trying to put the decisive and most important ones together into an argumentation that justifies a solution. After gathering arguments, as in the third step, the lawyer needs to mould them into an argumentation. This includes linking those arguments that either support or oppose each other, and giving priority to some arguments over others according to their relevance and weight. This process takes place in every legal decision-making.44 There is no particular functional approach method in this respect. What we need to explain is rather that a functional approach brings the opportunity to contemplate all of the arguments gathered in the third step. This opportunity makes the process conscious. It also makes it easier to see the role that property law concepts are playing. The idea of contemplating all potentially relevant arguments will not be considered strange by lawyers who are not used to applying a ‘functional approach’. The ambition should only be that this process be a conscious one and that the case should not be decided in a simplistic manner, by mainly relying on concepts such as ownership. This, however, does not mean that concepts are excluded from the decision-making process altogether. The concepts used in norms need to be taken account of in the argumentation, if the norm should have normative effect. When used at this stage in the process, the real problem has, however, been allowed to have an important effect on how the problem is perceived, and thereby it also affects the understanding of the concept. The concept used in the norm is a tool to communicate the typical interest of a typical party and the norm needs still to be understood relationally and relatively. Finally, there are some general things that can be said about the weighing process that is to be conducted at the fourth step. Firstly, the normative propositions such as statutes and precedent are of course attributed high normative value. However, when it comes to so called hard or unclear questions of law, such as in the Banco Santander case, the norms often do not address the real problem in a direct way. The process of ‘interpretation’ of the norms becomes difficult. Secondly, to include the other types of arguments, such as assumptions regarding the consequences a legal decision concerning the real problem can have, is a common part of the legal decision-making process, though a lawyer’s consciousness of doing so may vary considerably. Assumptions like this do affect the legal thinking, as well as the understanding of a normative dictum, such as an act of parliament. A norm cannot be understood without an idea of what the reality the norm should govern looks like. When we, for example, try to learn a rule on the buyer’s priority over the seller’s creditors, we do not comprehend it until we understand that these rules (also) govern the risk of fraudulent behaviour by the parties. We therefore make assumptions on the level of risk or are told about such assumptions that other lawyers have already made. In the same way, a norm cannot be understood without values. A common value is that law should treat everyone equally and to fully understand a rule on the buyer’s priority over the seller’s creditors, we might need to see whether or not the rule can easily be circumvented. 44 It is well known that there are various ways of explaining how legal argumentation is constructed and how legal decisions are made. This is a common topic in legal theory. A common simplified explanation is that it is a matter of ‘interpreting’ the law. For a classical attempt to explain legal methodology, see, for instance, RUDOLF VON JHERING, GEIST DES RÖMISCHEN RECHTS AUF DEN VERSCHIEDENEN STUFEN SEINER ENTWICKLUNG, PART II/2 322–445 (1st ed., 1858).