Jusletter IT

When Norbert Wiener called Leibniz the last genuine philosopher¹ it was a tribute to highlight also a fact that to Leibniz there were no boundaries within scientific fields and methods. At the time of Lebniz’s life and work there had already arrived such a specialization of individual fields of human cognition that more and more difficult obstacles appeared for them to intermingle. As it is today, similarly it used to be less and less frequent at Wiener’s times for philosophers to make (different than jocular) trips to mathematics or biology, or for a theologian to hold a scientific debate with physicist² . This impermeability is intensified even more by terminology differences causing even something like a language barrier while individual scientific disciplines attempt to interact.

A holistic view on human cognition, its comeback is not even possible to predict nowadays, in fact reached its peak at the beginning of the last century despite Wiener’s sigh referring to Leibniz. Optimistic visions by physicists, mathematicians and philosophers all fathoming the same fundamental questions of human cognition presented modernistic world with general and nearly holy trust in human intellect.

We can recognize one of the examples of a limitless belief in human cognition capabilities in almost titanic attempts to create holistic formal-logical systems. These attempts were from the start based primarily on rationality reifying efforts, i.e. trying to formulate objective, stable and demonstrable forms capturing human intellect expressions. Secondary motivation for creating formal-logical systems was probably also a natural need to communicate information produced by human thinking in a way that it reaches its addressee without distortion and doubts as for their meaning.

It was but Leibniz who being led by trust in human rationality was the first to attempt to create a complex system of formal symbols. His ambition was nothing less than creating such a group of expressions that would express, in a monotonous and objective way, cognition or rational thinking operations³ .

If Leibniz had been successful mankind would have received such a tool dealing with information and communication that its possibilities are beyond the realm of the most daring imagination. Together with its application there would disappear, for instance, metaphorical nature of linguistic expressions which would lead to perfect elimination of metaphors, inaccuracy or meaning range of interpersonal communication. Any utterance made by means of Leibniz’s language would also be, concerning its quality, undoubtedly provable. There would even exist a way to create whole logical systems out of the basic subject elements, accomplishing this by means of mere deriving and concluding, not to mention the automatization of these processes and their automated processing.

However, neither Leibniz’s genius, nor an outstanding extent of his scientific work, were able to achieve such a task, anda calculus philosophicus remained only a theoretical project. In spite of this failure Leibniz believed that formal systems development is inevitable for the future progress of human cognition, in other words cognition is even determined by symbols by means of which cognition can be expressed⁴ .

This Leibniz’s thesis proved to be correct later; since the effort to create formal-logical systems is returning widely just at the time of peaking modernism when scientific disciplines, due to historical coincidence, are hasting forward pursuing rational cognition⁵ . Renaissance of this need predicted by Leibniz can be found also in the second half of the last century within modernistic tendencies coming back in the prime, while the first efficient computers were arriving (about this see below).

At the end of the 19th century a German philosopher, mathematician and physicist Gottlob Frege⁶ was more successful than Leibniz, however, it is to say that not with the same project. He did not achieve any perfect language creation (he himself did not even pursue it⁷ ), but he formulated a system of expressions that monotonously described chosen basic rational methods. Thus by means of this system rational utterances could be recorded in a way that their constructions were objectively identifiable and their qualities positively provable.

By means of his Begriffsschrift Frege laid foundation for development of formal-logical systems in which the brightest brains of that time took part⁸ . A motivation for many of Frege’s followers was not only to formalize cognitionper se , but rather creation of apparatus capable to capture their own findings and theses. So let us generalize and say that formal logic was not on its initial stage the domain of formal logicians (there were no such ones at that time), but rather of scientists who were driven to formulate formal symbols and their systems by their need to clearly articulate their own findings.

Another Frege’s new discipline branch, however, not very significant and rather tolerated in the shade of empiric (aletic) approaches of formal logic, was logic trying to create expressions for dealing with aesthetic categories, with an obligation category in particular. The founder of this type of logic, later called deontic logic, was a not very well known⁹ Austrian philosopher Ernst Mally. Mally attempts in his monograph Elemente der Logik des Willens¹⁰ to construct a logical system where the influential operators are not aletic but normative (deontic) modes. Despite the fact that Mally’s work was poorly considered after World War II, it is possible to admit that he holds primacy in dealing with a number of tasks that many other highly esteemed representatives of deontology, for example, Jorgensen and von Wright, took into consideration independently as late as few years or even few decades after him¹¹ .

Frege’s success in formulating of formal system of descriptive expressions, as well as other achievements by his followers counting the leading representatives of dominant scientific disciplines of that time, i.e. mathematics, physics and in some respect also philosophy, were not unlimited. Reaching their peak in the effort to create internally consistent systems of human cognition formalization a terrible blow came from inconspicuous Kurt Fridrich Gödel a native of Brno.

Historical sources usually pictured Gödel as a sickly hypochondriac of poor self-presentation ability. His unattractive appearance, body built and poor rhetorical skills were possibly the cause to his shyness in scientific environment¹² . Therefore, Gödel decided to speak publicly and regularly about his theses only after he had gathered perfect and steadfast evidence. Behind his genius ideas there was analytic diligent work what preceded, and then offering such precise evidence that there was no way to shake it¹³ .

Gödel had also the exceptional ability to analyze in details formal systems and reveal their deficiencies. This ability of proving inconsistency of a given system from inside (i.e. by means of its own structure) led him to the formulation of such theses that shattered modernism and meant a serious disturbance of the development that was gradually approaching a fulfillment of Leibniz’s ideal of the perfect formal rational representation – the so-called theorems of incompleteness.

Gödel proved, straight at a certain prominent convention of mathematics of the day¹⁴ , that no formal system could be at the same time complete and free of ambiguities. He immediately formulated and argued the thesis that unambiguous nature of a given formal system could not be proved out of the system itself (i.e. from inside). The fact that Gödel did this, even though by means of methods and expressions of the very systems, did not mean a complete breakdown of endeavor for formalization of human cognition, but certainly contributed to a gradual end of unrestrained modernistic optimism.

Formal-logical systems continued and continue in development despite Gödel’s discovery, thus proving Leibniz’s thesis mentioned above that human cognition directly assumes the existence of proper formal-logical expressions for its positive expression. Gödel then did not break formal logic to pieces or not even the systems of mathematical expressions, but took away, probably for good, their belief in absolute perfection, completeness and finality. Attempts at creation of formal-logical systems that followed the earthquake caused by Gödel’s theorems can be, from our contemporary point of view, considered as Sisyphean and Don Quixote-like struggle, however, on the other hand there is a number of practical proves for assertion that even a far less than perfect formal-logical system can play an indispensable role in the practice of human cognition.

Optimistic approach in dealing with the question of perfect coding is applied also by a founder of Czech law of information technology Viktor Knapp, when he writes in one of the historically first works analyzing law as an information system¹⁵ : «If cybernetic exploration and processing of a quantitative aspect of a certain quality is to be feasible, the relevant science (logic) must be able to express a necessary prerequisite of this exploration in terms of definite number of definite logical-mathematical formulas, i.e. in a way ‘understandable’ to cybernetic machines […]. If a given science in a given period and in given problems does not fulfill this prerequisite it can be in fact caused by two things: First of all, although it can be sufficient in practice to get to know some processes and relations, they are still dependable on an indefinite or rather beforehand indeterminable number of prerequisites that are not expressible by a definite number of logical-mathematical formulas.» He adds in the same breath, that«[I]mpossibility of expressing some relations by a definite number of definite logical-mathematical formulas usually depends for the time being (in humanities and social sciences especially) on subjective factors anchored in a given science itself, which has not so far created necessary prerequisites for cybernetic methods usage. This last mentioned impossibility can be eliminated by further development of a given science.»

One of the proves for Knapp’s assertion that for practical need even a less than perfect elementary (logical-mathematical) code can serve sufficiently and that science disciplines show in terms of coding considerable deficiencies, are computer programming languages. These are formal logical systems,nota bene based on (rather taken for granted) ethical or obligation operators, i.e. on instructions. An invention of computer as an automatic processor of information consequently led to a necessity of language by means of which could information operation (intellectual activity) be formalized, so that a machine in fact equipped with no pre-understanding can process it.

Various formal logical systems can rely in some respect on human pre-understanding, thoughex definitione according to Wittgenstein they should not, nevertheless, they can even get away with it. However, in case of a computer code it is definitely impossible to rely on such situation where a computer itself would, thanks to its pre-understanding, equalize an information deficit of some instruction. While it is possible to formulate an instruction for a human such as «if it rains, close the window,» a computer would not understand this instruction until we precisely define for it all used axioms and operators, and in this case what it means «to rain» and how to execute the instruction «close the window». Even a fairly banal thought operation must be expressed for a computer in a relatively complicated structure, inevitably composed of several basic expressions and operators which are understandable to it.

We can suppose that only in case we are forced by a practical need¹⁶ to communicate with a computer, at that particular moment we can realize how complicated it is to create at least a sufficiently quality formal logical system, completely independent from human pre-understanding. Because of elementary operations being maximally simplified the computer code (let us remind that all contemporary computers work in terms of a binary principle) is practically an ideal example of a perfectly monotonous and causal system of symbols, existing entirely independently of a surrounding environment.

Due to a need of «explaining» to a computer all expressions and operators in such details as far as the binary level nobody tried to consider for this case creation of anything similar to Leibniz’s total calculus philosophicus . Engineers of the first programming languages, being limited by invincible simplicity (it calls for to say even dullness) of a binary computer, never set (in Peregrin’s words) even primitive goals of Frege’s Begriffsschrift , because it was also largely based on human pre-understanding. Thus thanks to a computer, as a sheertabula rasa , human could fully sense a difficulty of a task to positively formalize intellect or to express it in a monotonous objectively perceivable form.

Unlike information technologists-programmers whose science discipline is about a half of century old, the law has thousand-year experience with a binary formalization. The authoritative law application is in fact composed, under idealistic assumption that there are only rules and mere syllogism, of a number of information processes with a simple binary output. Even individual information entering into an authoritative law application can be by a basic method divided according to a binary key fact/law¹⁷ or into true/false and valid/invalid information.

Based on the view of information technology the law application process itself is practically just procedure where simple binary categories are joined to individual process information. Factual information is evaluated by means of features true/false based on evidence quality by which information is corroborated. Following values are assigned to law information – valid/invalid being usually based on a quality of relevant law arguments or based on interpretative conclusions concerning relevant normative hypotheses fulfillment.

Based on what has been mentioned it is obvious that unlike programming languages law deals with a totally opposite problem when formalizing by means of binary categories. While a programmer tries to formalize expressions and instructions, a legal practitioner endeavors binary formalization of outputs of individual information operations. Thus a legal practitioner does not create formal-logical expressions at application of normative law system, but only joins appropriate (binary) categories to individual process information. This is a proper time to admit that a role of a legal practitioner, a judge in particular, though it is very often so scrupulously morally difficult¹⁸ , is technically (logically, intellectually) simpler than a programmer’s task.

In fact, a lawyer’s task is just to simplify factual and legal information up to the extent where it is possible to definitely add those mentioned binary features¹⁹ . On the other hand an idealized figure of a lawmaker is then similar in tasks to a programmer. A lawmaker formalizes information, composed of axioms and deontological operators, into an objectively perceivable form. A lawmaker, in contrast to a programmer, does not work with (so much) a dull addressee and can rely on pre-understanding of those whom appropriate information is addressed to.

Positive law, as objectively perceivable will of a lawmaker, and being present in legal normative acts, normative contracts or, for instance, in precedents, is a group of coded rules such as, for example, a computer program. Essential difference between code requirements for computer and law lies, in terms of information perspective, in the fact that the addressee of a computer code is a puretabula rasa , while the addressee of a law code is equipped with a great deal of pre-understanding apparatus, even under the least favorable circumstances. Lawmakers work with this pre-understanding so that they balance their natural incapability to formulate positively, monotonously and simply appropriate rules.

The approach to lawmaking that would allow a lawmaker to have an intellectual deficit (or a deficit in means of expression) and rely on human pre-understanding, even though not individually defined – varying person by person, began to appear in legal positivism as late as the period between World Wars. Prior to that time, or since the stormy beginning of modernism up to the period just before the World War II, even law, trying to catch up with the other «real» sciences, indulged in a fashionable and unrestrained belief in human rationality capabilities and relied on genius of codifiers²⁰ . A fashionable wave of law rules coding which has not terminated up to the present time (the opposite is true) gradually brought to Europe a number of great codifying attempts beginning probably with Bavarian Civil Code²¹ and peaking with French Code Civil²² .

However, it was not Gödel who brought the knowledge for the law that it is not possible to solely rely on human intellect formalization – his doctrine was too distant for lawyers.²³ The first step had to be taken by a lawyer and a representative of legal positivism, or its pure form, Hans Kelsen.

While textual formalists, whether French school of law exegesis or German axiomatic jurisprudence, based cognition of law directly on objectively perceivable will of a lawmaker (in continental Europe it meant a legal normative act), Kelsen understood the natural deficit of means of expression in law and separated a law content category, which he called a norm, and its objectively perceivable forms, i.e. the code, which he called normative expression. Since Kelsen argues for methodological distance of an objectively perceivable form of law and its content, he avoids problems caused by a binding quality of badly drawn laws²⁴ and enables various formal deficits of normative expression to be compensated by means of an interpretative procedure quality. However, in order to stay within boundaries of rationality he limits the options of normative expression interpretations with strict methodological requirements which are expressed in a postulate of pureness. According to Kelsen, the erroneous feature in normative expressions can be healed only if it has objective and rationally justifiable (or rather provable) character. Similarly, the method itself for healing the erroneous feature must be rational and logically arguable.

Consequently, we can fairly simply state that Kelsen freed positive law from a direct link on a (necessarily erroneous) text. Nevertheless, through this he did not come to a refusal of a perfect formalization of rationality in law, he only shifted its center from positive lawmaking a little closer to the application. While textualistic formalism is based on perfect law formalization into a form of sources, Kelsen’s positivism is based on a combination of a formalized source and a formalized interpretative method. Logical positive quality of this combination is then secured by sources genuineness in connection with provable rationality of interpretation.

Kelsen’s contribution to law is in this respect similar to the changes that were brought into positivistic science by new approaches based on rational evidence. While traditionalistic way of positivism depended on a possibility of realization of empiric evidence²⁵ , rational evidence was enough for a logical approach. After then logical positivism²⁶ enabled a rise of disciplines, such as theoretical physics, and world-shattering discoveries, among them, for example special and general theory of relativity. However, it was still positivism not leaving the boundaries of sheer rationality.

According to what was mentioned above, it is obvious that Kelsen in fact did not do the law disservice that could be compared to Gödel’s strike at the heart of dominant positivistic disciplines. Instead of a belief in textual law source Kelsen contributed «only» by enrichment of positivist law thinking in terms of a belief in formalized or formalizable logical interpretative method. Kelsen also secured his system against Gödel-like attacks by means of admitted irrational (i.e. intuitive) legitimized relation to the basic norm (Grundnorm). On one hand, doing so, he admits a little deficiency of positivism of pure law and on the other hand he managed, obviously not on purpose, to secure his construction also against a later identified threat of all positivistic-logical systems.

The cause that shattered European law in such a way that it at last came down to earth after putting a blind trust in coded or pure reason was not, however, Gödel’s evidence nor any other logic construction, but World War II and its legal background. Only its elementary horror put, metaphorically, also code-free and impossible-to-code intuition back in the battle for law.

Within positivist field of law thinking this shock can be observed clearly in work of a positivist Gustav Radbruch. The so-called Radbruch’s formula became soon after World War II a milestone of further development of legal positivism²⁷ that is, paradoxically, by empiric cognition²⁸ forced to break the postulate of pureness. We can simply state that while Kelsen removed from law the boundary of normative text, Radbruch, having experienced the horror of Nazi law, eliminated the insurmountable boundary of rationality from legal positivism.

Coding of rational thoughts into an objectively identifiable form of symbols or expressions is intellect manifestation. Reason is, in fact quite suitable for coding. Gödel’s limit of a perfect formalization stays, in this case rather high, which is proved not only by Knapp’s words but also, for example, by above cited Russell’s Principia Mathematica – despite inner ambiguity on the highest level of logical structure, they are to a certain extent generally usable. Among other proves to practical usability of rationality coding there are also further attempts at a perfect code, which, it is to say in spite of Gödel, are made repeatedly and continuously by practically all natural and social sciences.

Coding can be also viewed as an outside form and, at the same time, a condition for rationality. Consequently, uncompromising Wittgenstein’s manifesto or Kelsen’s postulate of pureness allow to exist only those thoughts that can be objectively (positively) expressed. A relation of philosophical appeal by positivists with Gödel’s theorems then sound a bit pessimistic – should we speak, on one hand, only about the things we are able to precisely formulate and prove, while on the other hand it is not possible to objectively formalize formal-logical system so that it is complete and free of inner ambiguities at the same time, it means that an ideal activity of scientists is not to publish but be silent. As mentioned above, sciences resist Gödel’s limit, and so we can even infer a provoking thesis that the foundation of all rational disciplines of human cognition is realistic resignation to ideal results.

Similarly, as the tendency to code is natural within rationality, it is possible to observe it also in case of emotionality or intuition. People code not only in order to attain rational utility but also emotional and intuitive utility. Illustrated by a practical example, people have not only a rational need to create a map to be able to orient themselves (and safe in this way a part of their sources) but, at the same time, have a natural need to paint a picture to express emotions or express a belief in God.

The difference of subject matter of rationality and emotionality is crucial also for means of expression which are used for formalization of both of these spheres. In the first case, formal symbols and their interrelations have ideal monotonous and logical character, while the ambition of the author of a given code is (in spite of Gödel) its definite completion. By contrast in case of coding of emotional meanings there are highly metaphorical expression used and the author, knowing that complexity of a certain matter cannot be even glanced, must inevitably resign even to a mere attempt at completion or monotony of their expression.

Emotionality means of expression, which fundamentally differs from precisely monotonous language of formal-logical systems, correspond to what was just mentioned above. In addition to language, where quality is completely different, we use different means of expression in a great number for emotions and intuition coding, for instance, pictures, music or dance. Thus it is meaningless on one hand to publish information on effects of physical laws by means of an opera aria, and on the other hand, in the same way, it is clearly impossible to express a belief in God by a mathematical equation²⁹ .

Providing that we want to describe, at least by a hint, mechanism of morality coding, we will have to approach it and its result not as a rational process but rather as intuitive procedure. First of all, it means toa priori accept metaphorical nature of used expressions, and finally also partiality and deficiency of the entire output.

According to the facts mentioned above, coding and consequent code interpretation can be led either by rationality or intuition. A method choice can depend on the subject of coding or, in contrast, on the required output quality.

The better describable the reality is, or the simpler way to express the rule, the more rationality is manifested in the resulting method. As the complexity and implicitness of a given object grow, then there grows also the extent of utility of metaphors or intuitive interpretative methods. Similarly determining can be the extent of rationality intuition, in contrast, in relation to required output – artists can be driven in their expressions by intuition, because metaphorical expression is expected from them. Contrary to the previous, a judge is compelled to work mostly rationally, since the information that is processed, being complicated and bound with complex effects, must be translated into simple categories fact/law or true/false and valid/invalid.

Whether coding is led by reason or intuition, its result must be, according to Gödel, inevitably incomplete and ambiguous. A question that appears in this context is, however, whether to apply successfully Gödel’s theorems of incompleteness also on Gödel’s theorems of incompleteness. These theorems in fact describe complexly their object and at the same time reserve an ambition to be incontrovertible.

The answer to this question is related to the elementary difference which could be described as a difference between a hunter and her prey. Gödel’s prey, which was in his first plan Russell’s Principia Mathematica, is, in its nature, a code of mathematical rules. However, in this case Gödel himself codes neither mathematics nor any other field of human cognition, but solely his prey, i.e. Russell’s code, and he reveals its deficiencies. Gödel does not carry out any analysis or reality description either, but Russell’s code and practically any code that resembles in its nature Russell’s code. Gödel does not code reality by his theorems but by other code, and he does not formulate on this basis cognition rule but only the rules of other coding.

The key for identification of the difference between Russell’s and Gödel’s code is introduced by an English philosopher Michael Oakshott who distinguishes between theoretical and practical cognition³⁰ . While theoretical cognition leads to reality clarification, practical cognition, according to Oakshott, merely comments given rules. Practical cognition thus profits either from simple empiric experience or more often from outputs of theoretical cognition, and consequently, it is inferior in relation to theoretical cognition.

While the object of theoretical cognition is vast and, as Gödel proved, absolutely imperceptible, the object of practical cognition is usually a code appearing as an outcome of theoretical cognition. Practical comprehension has its object relatively well defined and it can also fully cover it. At the same time it is also possible that practical cognition would lead to a perfect result which is a description of primary cognition result (primary code), including possible mentioning of its deficiencies.

Using Oakshott’s terminology, the code can be called a result of theoretical cognition, while Gödel’s theorems «only» an output of practical cognition. And while the primary (Russell’s) code suffers from incompleteness and inner ambiguity, the secondary (Gödel’s) code can be, thanks to its nature of practical cognition or to its object, complete and unambiguous inside.

In the same way that Gödel could formulate complete and unambiguous criticism of Russell’s work, it is also possible to find similar results in other cases where the object of cognition is not reality but someone’s primary code. Thus, for instance, description of a cellular machine or a computer program can be perfect. Also in these cases we can determine and describe in definite numbers the possible situations and even discover and describe errors and deficiencies of given codes.

Differences between primary and secondary coding can be, of course, found in law as well. As a primary code we can understand, for example, an act – it works as communication of legal rules and is, in words of Michael Oakshott, an output of theoretical cognition. Under such conditions, however, it suffers from above mentioned limits, i.e. incompleteness and/or inner ambiguity. In contrast, a commentator or critic of an act can, by means of a secondary code, carry out a complex analysis of that what is covered by an act, how it will work in practice, and it can even reveal its deficiencies and weak points. The character of secondary code adopts also forms where law is realized in practice, e.g. in various procedural pleadings³¹ .

Similar case applies to judicial decision with the so-calledhard cases . A judge is here also forced to formulate a result of their theoretical cognition into a form of primary code, bearing in mind beforehand that there is resulting erroneous nature and incompleteness of positive argumentation. At simple cases, in contrast, a judge can rely on an existing primary code (for example, a law or established judicial decision), and this is to be just analyzed and applied.

Complexity of primary coding, or simplicity of secondary coding, indirectly reflects originally German term «simple law» used for a level of statutory law. This term ideally presupposes that the matters supported by laws represent to a judge-interpret a practical task. However, even though judicial decision has a form of a secondary code (i.e. it becomes a perfect output out of a logical analysis based only on a primary code) it does not mean it is absolutely perfect. In fact, its objective quality can, despite itsper se perfection, easily succumb to imperfection of a primary code which it was based on (i.e. for example, on imperfection of a law). Such imperfection can be revealed by a judge only when she frees from practical comprehension of a primary code (reading of an act) and focuses on theoretical (primary) comprehension of a subject case and its context.

Another situation that leads to a need of primary coding on a level of statutory law can be, for instance, already mentionedhard case lying in problem which is not supported by a primary code. But even in this case, application on a level of statutory law does not have to be inevitably only secondary coding, but it can, or often must, have character of an output of theoretical cognition. The term «simple law» for indication of statutory law can seem in this case to be not very appropriate, and to a considerable extent unjust – hardly is it possible to imagine everyday work of simple law that uses exclusively simple (secondary) methods of its usage.³² Even the Czech Constitutional Court itself invites to apply methods of primary coding, even if there is, within a simple law application, primary code available, when it states³³ «[r]outine application abstracting, or not being aware of, either deliberately or due to a lack of education, the meaning and purpose of a legal rule, renders the law a tool of indifference and absurdity». This appeal is immediately in the next sentence followed by admission of problematic character of primary coding, while «[a]cceptance of other sources of law as well, except for black-letter law (with general law regulations in particular), evokes question about their knowability. In other words, it evokes question whether their formulation is a matter of arbitrariness or whether it is possible at their formulating to lay down procedures that would allow certain objectification».

While the origin of a primary code is difficult – it suffers from natural erroneous character and incompleteness, creation of a secondary code is incomparably easier and, thanks to its feasibility to attain perfection, relatively even more rewarding. The significance of secondary coding in the law is intensified also by the fact that the most frequent lucrative outputs of lawyers’ activities have the very form of a secondary code – or outputs of operational mode, and we can claim that most of legal practitioners make a living by secondary coding.

In many cases of legal practice it is not even secondary coding that it is dealt with, but tertiary or even one level lower. Primary code consists, for example, of a legal act and judicial decision, to the legal act then comes a secondary code in the form of analysis (commentary), this is in the next step used as a basis for a standard contractual form, and a legal practitioner then simply adjust this pattern to particular conditions of appropriate obligation, and finally creates definite contract. The advantage of secondary and lower forms of coding in law is the fact that it can be decently realized practically by every rationally thinking individual, and this activity shows to a large extent signs of a craft. It requires a certain level of performance and practical skills, however, not that much of a talent or other intuitive abilities. Thus a number of activities on lower levels of practical coding does not have to be practiced by qualified lawyers, but also average qualified clerical workers can manage it perfectly. At the lowest forms of law coding a possibility of their partial or complete automation³⁴ can be even realized.

The above mentioned differentiation of codes to primary and secondary cannot be, however, understood as absolute. Primary code in law can be so extensive and metaphorical, that the secondary code, which is based on the former, cannot be created only rationally or logically. To illustrate the point we can use the above mentioned example of the law differentiation into constitutional and simple – we were not quite precise when we used the level of constitutional law as the example of a discipline where the primary coding takes place. In fact even constitutional law has its code at its disposal, the written Constitution in particular³⁵ , however, this is in many cases so metaphorical that its application cannot or even mustn’t be grammatical or logical³⁶ . Creation of statutory law or constitutional judicial decisions cannot be, by their very nature, considered real secondary coding, because it has a complex object and it does not manage methodologically only with rationality. The law, though based on a primary code of the Constitution, can really be considered, due to the method as mentioned above, a primary code. If the law is complex again, i.e. extensive or very metaphorical, it is necessary to use at its secondary coding the method of theoretical cognition.

Rational meaning of above written text could be summarized into a few fairly brief sentences. First of all, it should have become clear from the text that logical rationality is not capable of perfect cognition and description (coding) of complex phenomena. Therefore, in brief, nothing important can be made perfect by means of rationality, whether it is mathematics, physics, philosophy, information technology or law. Leibniz, Russell and Wiener, in law for example, Savigny, Jhering or Weinberger – these all have tried it without success. Even the fact that, quoting Isaac Newton, we can stand on the shoulders of the listed Giants, it is no use to us.

Now there is only to answer (or primarily code) the question why we try it, or what drives us that we continuously attempt, by means of our rationality, to attain a perfect primary code. It is obvious that what we do will never be perfect, nevertheless, we venture again and again to fight Gödel’s theorem. Why?

An eloquent answer is given by a dwarf Gimli, when he in the fantasy story The Lord of the Rings replies to the question whether to go into a apparently lost battle: «Certainty of death. Small chance of success. What are we waiting for?» There is no rationality after all, just sheer intuition. It can be about longing for beauty, adventure or perhaps creating of this text and thisliber amicorum – friendship.

Never will return the time when Moritz Schlick and his friends held meetings in Viennese cafes, when Russell and Wittgensteinem went for tea, beer or whatever into an orchard in Grantchester, or when Einstein and Gödel regularly spent long hours walking to and from work. Times have changed, and nowadays friends-academics only scarcely sit, chat and drink together on various conferences, symposiums and congresses.

Although it would be proper to celebrate anniversaries of members of our scientific community by few-day feasting on Tafelspitz, Wurst and Sacher, and drinking fine wine from Wachau, we must shamefully do only with a mobile phone, e-mail and writing articles into books similar to this one. I strongly believe, however, that it is still an expression of the same strong friendship that bound also our predecessors together and which keeps motivating us to work persistently – though we know that the Holy Grail of rational perfection is unreachable for ever.

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Radim Polčák, Head of the Institute of Law and Technology, Faculty of Law, Masaryk University, Brno,radim.polcak@law.muni.cz

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