## Strategies of Justification in Resolving Conflicts of Values and Interests. A Comparative Analysis of Constitutional Argumentation in Cases of Animal Sacrifice

## Abstract

Understood  as  reasons  and  rationale  given  by  courts  in  rendering  their  decisions  (DiMatteo  2015;  Gudowski  2015), justification  is of great importance when resolving morally sensitive issues. In such cases, judges are tasked with finding solutions to fundamental conflicts of incommensurable constitutional principles, which are inherently open-ended,  general and in need of interpretation. Constitutional courts rely on different models of constitutional review depending on a given legal system and culture. However, their overarching goal is to consider ways of resolving conflicts and their justifications arising from a clash between constitutionally protected rights and interests and other values deemed worthy of protection by legislatures. The question addressed in this paper is how a constitutional court can resolve conflicts and communicate motives  behind its decision in morally sensitive issues and how evaluative language is instrumental in achieving this strategic goal. Two cases are compared in which judges resolve a conflict between freedom to exercise religion and the animal  welfare.  In  Church  of  the  Lukumi  Babalu  Aye  v.  City  of  Hialeah,  the  US  Supreme  Court  addressed  the constitutionality of animal sacrifice for religious purposes. In Poland, the Constitutional Tribunal in its decision (K52/13) ruled for the admissibility of ritual slaughter.  Adopting the methodology of Corpus-Assisted Discourse Studies (CADS), this paper demonstrates that while the argumentation in the Polish decision is heavily axiological, with Polish judges using value-based language to engage in fundamental values and principles, the US Supreme Court judges avoid broad, abstract reasoning by resting the argumentation on low-level and medium-level principles (Sunstein 2018) translated into concrete rules and standards.

## Keywords

justification;  constitutional  argumentation;  animal  sacrifice;  values;  incompletely  theorized  agreement,  pragmatic argumentation, value hierarchies

## Introduction

Justification plays a central role in public, institutional discourse. Decision-making in virtually any sector,  whether  private  or  public,  is  expected  to  be  supported  with  reasons.  Indeed,  it  would  be difficult to imagine meaningful and relevant social and institutional interactions without providing motives for  decisions made or adopted standpoints. Nowhere seems  the requirement for providing justifying  arguments  more  conspicuous  than  in  the  legal  sphere,  especially  in  professional  court practice. It is part of the rule of law that legal decisions must be justified. However, there are no explicit legal norms regulating judicial justification and  one of the main problems addressed in the study of legal argumentation is 'the question which standards of soundness the argumentation should meet' (Kloosterhuis 2013: 72). From the perspective of legal theory, argumentation in legal decisions is usually discussed within three dominant traditions: the logical, the rhetorical and the dialogical (Feteris and Kloosterhuis 2013; see also Feteris 2017 for an overview of theories on the justification of judicial decisions). These approaches share a primary interest in evaluating judicial justification based on criteria ranging from formal (the decision must rest on a logically valid argument) and material (facts, norms, interpretations of norms, etc.) to context-dependent aspects of acceptability (the effectiveness of the argumentation for the audience to which argumentation is addressed). How-

*  Stanis ł aw Go ź d ź -Roszkowski Dept. of Specialised Languages and Intercultural Communication University of Lodz stanislaw.gozdz@uni.lodz.pl ever,  much  less  attention  has  been  given  to  the  linguistic  dimension  of  the  justification  when reconstructing real life argumentation in legal decisions. In this paper, I argue for combining the argumentative approach to legal justification with the study of value-laden language to account for the strategies adopted by constitutional court judges to gain acceptance for their decisions.

It is in the nature of constitutional adjudication that judges are faced with the task of resolving conflicts involving competing principles, values and interests (Virgílio Afonso da Silva 2011). It is generally acknowledged that decisions in such fundamental and morally sensitive issues should be acceptable not only from a legal but also from non-legal-e.g., political, social, moral, or economicpoints  of  view.  The  multiplicity  of  viewpoints  entails  a  multiple,  composite  legal  audience comprising not only the fellow judges ('the bench'), lower court justices, litigants, legal community, legislators, or government officials, but also news outlets and the public (Perelman & OlbrechtsTyteca 1969; see also Romano and Curry 2020 for a more detailed discussion of the concept of audience effect). If the decisions concern morally sensitive issues, such as abortion, euthanasia, or same-sex marriage, they are bound to receive intense media attention evoking a range of emotive responses from the audiences. Viewed from that perspective, judicial decisions operate to mediate disputes  in  a  diverse  society.  Designed  to  account  for  a  judicial  decision-making  process,  legal justification  offers  an  indispensable  tool  that  can  be  used  by  judges  to  meet  the  requirement  of soundness by having their decisions based both on the contents of arguments and the acceptance of the argumentation by the audience(s) to which it is addressed (Perelman and Olbrechts-Tyteca 1969). To  achieve  this,  judges  need  to  construct  their  justifications  selecting  appropriate  linguistic  and rhetorical means. Since morally sensitive decisions are essentially value judgments, judges must demonstrate that the choices made and the values used to justify the decision are not arbitrary but they are fair and in accordance with the law. The aim of this paper is to demonstrate how language is instrumental in achieving this strategic goal. In doing so I compare the use of evaluative, valuebased language in two justifications given by courts from two different legal systems and cultures for decisions resolving a very similar type of conflict.

To this end, I examine two cases in which judges resolve a conflict between freedom to exercise religion and animal welfare. In Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Court of the United States addressed the constitutionality of animal sacrifice for religious purposes.  It  voted  unanimously  to  strike  down  a  set  of  local  ordinances  prohibiting  the  practice because they specifically targeted the Santeria religion. In Poland, the Constitutional Tribunal in its decision  (K52/13  2014)  ruled  for  the Act  on  the  Protection  of  Animals to  be  unconstitutional inasmuch as it banned and penalised the killing of animals in a manner required by religious rituals. Both cases address the fundamental conflict between the freedom of worship and the right of the state  to  exercise  some  control  over  how  faith  is  practiced  in  order  to  minimize  the  suffering  of animals. The courts resolve the dispute by giving priority to the freedom of worship but they construct the rationale behind these decisions in radically different ways.

To prepare the ground for the analysis, I first outline models of constitutional review in USA and Poland  and  the  position  of  legal  justification  in  each.  Then  I  explain  the  concept  of  evaluative language and its relevance to justification. The data and methods adopted in this study are described before presenting and discussing the results of the analysis.

## 2. Constitutional review in USA and Poland

It  is  often  thought that constitutional courts should be examined separately from supreme courts. However, it is not uncommon to compare the caselaw and the mechanisms of European constitutional courts  with  supreme  courts  functioning  in  countries  belonging  to  the  common  law  tradition, especially regarding the Supreme Court of the United States (Kelemen 2018). What these courts have in common is the power of constitutional review. In continental Europe, the centralised model of constitutional review came into being after World War I 1 . In keeping with the model advocated by Kelsen (Vinx 2007), a specialized body was to be established outside the regular judicial structure to review  the  constitutionality  of  legislative  acts  and  provide  a  'constitutional  defence'  against unconstitutional legislative actions. Just as most European countries, Poland also established its own constitutional court, the Constitutional Tribunal in 1982. The Tribunal is uniquely empowered to set aside legislation that does not comply with the Polish constitution. According to Garlicki (2007, p. 57),  the  Polish  system  of  judicial  review  relies  on  three  basic  procedures:  abstract  review,  legal questions referred by ordinary or administrative judges deciding individual cases, and constitutional complaints  that  are  filed  with  the  Constitutional  Tribunal  once  appellate  procedures  have  been exhausted.

The role of the Supreme Court of the United States (SCOTUS) is complex since it acts as the highest appellate court, the final arbiter of the law and it also exercises the power of judicial and constitutional review by invalidating legislation or executive actions which have been found to be in conflict with the Constitution. In the case of procedures before the US Supreme Court, parties not satisfied with the decision of a lower court can petition the U.S. Supreme Court to hear their case. The primary means to petition the court for review is to ask it to grant a writ of certiorari . 2 It is worth pointing out that the Court is usually under no obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and could have precedential value.

Perhaps  most  importantly,  in  the  context  of  the  present  analysis,  the  Constitutional  Tribunal exercises 'abstract review', which means that the question of constitutionality does not arise from actual litigation. The court 'compares two normative texts and assesses their compatibility without regard  to  their  concrete  application'  (Kelemen  2018,  p.  14) 3 .    In  contrast,  in  the  US  model  of constitutional review, the focus is on resolving a specific issue with the constitutional conformity of a given legislative act often treated as largely as incidental. Keleman (2018: 14) argues that the nature of judicial review could be the main factor behind the difference between the style of argumentation of constitutional courts in Europe and the style of common law supreme courts. In other words, the style of argumentation can be influenced by the extent to which judges engage in abstract reasoning and decision-making.

## 3. Legal justifications in the institutional contexts of the US Supreme Court and the Constitutional Tribunal decisions

When discussing the institutional and professional contexts of the two cases, it is also instructive to view  legal  justification  as  the  textual  product  created  by  two  different  judicial  institutions. Understood as the reasons and rationale given by courts in rendering their decisions (DiMatteo 2015; Gudowski 2015), legal justification reflects the disciplinary and organizational culture of a given justice system.

1  https://www.venice.coe.int/SACJF/2006\_02\_Venice\_Strasbourg/report\_mazak.htm (last viewed 17 of January 2023).

2  The term writ of certiorari refers to a request made by the Supreme Court through its order a lower court to send up the record of the case for review. More detailed information about the procedures  can be found at the US Supreme Court website https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activityresources/supreme-1 (last viewed 20.04.2021).

3  The European model also allows for 'concrete review', initiated by an ordinary judge and leading to a concrete controversy. However, even this type of case is treated in an abstract and formal way disregarding the specifics of a particular case (Sweet 2003; see also Koszowski 2019, p. 220).

Table 1: The macrostructure of the Polish SC judgment

| The macrostructure of Tribunal decision   | The macrostructure of Tribunal decision   | The macrostructure of SCOTUS opinion   |
|-------------------------------------------|-------------------------------------------|----------------------------------------|
| Segment 1                                 | komparycja (heading)                      | Headnote                               |
| Segment 2                                 | tenor (disposition of the case)           | Procedural history                     |
| Segment 3                                 | justification                             | Holding                                |
| Part 1                                    | historyczna [historical]                  |                                        |
| Part 2                                    | na rozprawie [at the trial]               |                                        |
| Part 3                                    | uzasadnienie prawne [legal justification] | Opinion                                |

Table 1 shows a basic similarity between the two organizational formats. There is some  overlap in terms of the specific segments. Both include sections which identify the court, the names of the parties,  etc.  Both  announce  the  final  ruling,  i.e.  disposition  of  a  case  (or  holding  in  US  judicial discourse)  and  refer  to  decisions  taken  by  lower  courts  and  the  legal  standpoints  adopted  by institutional actors. They differ regarding the extent to which justification itself is structured. The structure of legal justifications given by the Constitutional Tribunal in Poland reflects  the Polish court  practice  which  distinguishes  between  two  major  elements:  the  historical  and  the  legal (Rzucidło -Grochowska 2017). The first two parts (referred to as Part I: historyczna 'historical' and Part II: na rozprawie , literally 'at the trial', combined correspond to what is known as 'procedural history' in common law jurisdictions. It is Part III, uzasadnienie prawne 'legal justification' which should  be  seen  as  the  justificati on  proper  (see  Goźdź -Roszkowski  2020  for  a  more  in-depth discussion of the macrostructure of the decision and the rhetorical structure of legal justifications). In  contrast,  the  SCOTUS  justifications  do  not  follow  a  fixed  organizational  format.  It  is  worth pointing out that in both institutional contexts,  judges exercise considerable discretion in choosing how to the present their reasons for the decision.

## 4. Value-based lexis and argumentative discourse

The analytical focus in this paper is on value-based lexis, understood as lexemes indicating major argumentative premises ( topoi ), values and argumentation schemes. According to the classical legal rhetoric (Frost 2016), topoi (also known as loci ) are places where available legal arguments can be discovered. In a legal context, the topoi or topics are generally accepted legal values which judges choose carefully to gain the acceptance of a legal audience. Legal topoi usually draw upon general legal principles, such as fairness or equity (Feteris and Kloosterhuis 2013).  They are regarded as fundamental  to  the  legal  and  social  order.  Value-based  lexis  offers  a  way  of  identifying  and reconstructing argumentation based on value judgment. In such cases, lexemes are used to refer to values, value hierarchies and legal topoi ; all of which can be employed by arguers as starting points or common points of departure for constructing argumentation schemes to gain the approval of a legal audience. According to Perelman (1976), the choice of particular values, whether abstract or concrete, and the subsequent hierarchical ordering must be justified and explained. The justification is realized by applying various forms of argument in order to convince the audience that the decision is  sound and legally correct. This study is based on the assumption that values can be treated as sources or premises for argument in a value judgment and analysing value-based lexis and their collocates should help identify specific strategies of argumentation used by judges in the two cases.

## 5. Data and Method

The  study  reported  in  this  paper  uses  the  methodology  of  Corpus-Assisted  Discourse  Studies (Partington et al. 2013) to scrutinize argumentative discourse in two judicial decisions. This approach is eclectic and combines analytical techniques used in corpus methodology with discourse analysis (Goźdź -Roszkowski 2021). As the first step, the quantitative technique of extracting keywords is applied to identify a list of statistically salient lexis that is potentially used in the justifications to reference values. Extracting keywords involves comparing two lists. One list is based on the words from the focus corpus i.e., the one under investigation, relative to a reference corpus. The focus corpus comprises two judicial decisions analysed in this paper. More specifically, the court opinion in Church of the Lukumi Babalu Aye v. City of Hialeah totalling  18,173 words and the majority opinion in Constitutional Tribunal decision designated as K52/13 (23,303 words). The computing of keywords  involved  using  the  reference  corpora  of  Supreme  Court  opinions  and  Constitutional Tribunal  decisions  (both  compiled  by  the  author)  and  comprising  108  US  documents,  totalling 1,270,049 words and 86 Polish documents, totalling 971,219 words. One hundred keywords were considered of which 50 are provided as Table 2 and 3.

The lexical items are then analysed using a discourse approach that examines and interprets the discourse  surrounding  the  target  item  to  identify  its  function.  This  part  of  analysis  is  aided  by scrutinizing the relevant concordance lines and referring to the entire text of the justification. These analyses were carried out using the Sketch Engine software. The interpretative part of the analysis relies  on  Perelman's  Legal  Argumentation  Theory  (1976)  which  specifies  argument  forms  (e.g. argumentum a contrario , the teleological argument) which judges tend to use to justify their choices and decisions.

## 4. Identifying the 'aboutness' of argumentation. Value-based Lexis as Keywords

The keyword technique is commonly used to highlight what lexical items are statistically salient in the focus corpus, Keywords provide a quick and effective way of knowing the 'aboutness' of a given text or texts (see, for example Baker 2004). The 50 keywords shown in Table 2 can be grouped into a few semantic and functional categories providing useful starting points and insights into the general characteristics of the argumentation used in both cases. However, the main aim is to identify lexis referencing values and general principles around which the justification has been constructed. We start with an overview of keywords in the SCOTUS justification.

|   Lemma | Lemma          | Frequency   | Frequency   |    | Lemma               | Frequency   | Frequency   |
|---------|----------------|-------------|-------------|----|---------------------|-------------|-------------|
|         |                | Focus       | Reference   |    |                     | Focus       | Reference   |
|      1. | hialeah        | 78          | 0           | 26 | hybrid              | 6           | 4           |
|      2. | santeria       | 53          | 0           | 27 | religious           | 147         | 152         |
|      3. | free exercise  | 29          | 0           | 28 | cruelty             | 25          | 25          |
|      4. | sacrifice      | 86          | 5           | 29 | unconstitutionality | 4           | 3           |
|      5. | slaughter      | 30          | 1           | 30 | killing             | 23          | 27          |
|      6. | animal         | 145         | 28          | 31 | church              | 24          | 29          |
|      7. | mayor          | 17          | 2           | 32 | exemption           | 26          | 35          |
|      8. | ritual         | 25          | 4           | 33 | city                | 155         | 227         |
|      9. | ceremony       | 6           | 0           | 34 | applicability       | 26          | 37          |
|      10 | animals        | 6           | 0           | 35 | religion            | 73          | 113         |
|      11 | underinclusive | 12          | 2           | 36 | ordain              | 4           | 5           |
|      12 | orisha         | 5           | 0           | 37 | catholic            | 4           | 5           |
|      13 | ritualistic    | 5           | 0           | 38 | scholarship         | 4           | 5           |
|      14 | hog            | 5           | 0           | 39 | wine                | 4           | 5           |
|      15 | polygamy       | 5           | 0           | 40 | worship             | 5           | 7           |
|      16 | slaughterhouse | 5           | 0           | 41 | neutral             | 32          | 56          |
|      17 | neutrality     | 57          | 20          | 42 | register            | 8           | 14          |
|      18 | ordinance      | 160         | 62          | 43 | formally            | 10          | 18          |
|      19 | prosection     | 4           | 0           | 44 | consumption         | 12          | 22          |
|      20 | encylopedia    | 8           | 2           | 45 | god                 | 4           | 7           |
|      21 | religiously    | 7           | 2           | 46 | scrutiny            | 23          | 53          |
|      22 | non-religious  | 5           | 1           | 47 | cattle              | 4           | 8           |

Table 2:  Fifty keywords extracted  from  the  court  opinion of Church of the Lukumi Babalu Aye v. City of Hialeah

|   23 | secular   |   14 |   6 |   48 | governmental   |   38 |   91 |
|------|-----------|------|-----|------|----------------|------|------|
|   24 | kosher    |    4 |   2 |   49 | unnecessarily  |    6 |   17 |
|   25 | meat      |    5 |   3 |   50 | target         |   18 |   55 |

As  can  be  seen  in  Table  2,  some  keywords  are  self-evident  referencing  location  ( Hialeah ), institutional  actors  and  instruments  involved  in  the  case  ( Mayor,  ordinance ),  others  are  directly related to the object of adjudication (the subject matter); i.e. religion ( Santeria, ritual, ceremony, orisha,  church,  Catholic )  and  animal  ( animal,  hog,  cattle ).  The  last  category  of  keywords,  i.e., animals,  is  discussed  in  the  context  of killing,  slaughterhouse and sacrifice ,  which  are  also keywords 4 .

However, there are also some keywords pointing towards the legal basis for the ensuing reasoning. The  third  most  key  word  is  free-exercise , which  refers  to  the  First  Amendment's  Free  Exercise Clause.  First  Amendment  of  the  US  Constitution  safeguards  freedoms  concerning  religion, expression, assembly, and the right to petition. It prevents legislatures from both prioritizing one religion  over  others  and  also  restricting  an  individual's  religious  practices 5 .  The  protection  of religious practices is enshrined in the Free Exercise Clause, which protects not only religious beliefs but also actions made on behalf of those beliefs. It is therefore not surprising that the concept of free exercise is central to the case, as the question addressed by the US Supreme Court boils down to whether the city of Hialeah's ordinance, prohibiting ritual animal sacrifices (arguably viewed as an action, based on the religious Santeria belief), violated the First Amendment's Free Exercise Clause 6 . Thus, it can be assumed that it is the principle of religious freedom that is adopted as the major topos and the starting point for the court's argumentation, as illustrated in Example 1 below (emphasis in bold added):

- 1) The  principle that  government  may  not  enact  laws  that  suppress  religious  belief  or practice  is  so  well  understood  that  few  violations  are  recorded  in  our  opinions.  Cf. McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953). Concerned that this fundamental nonpersecution principle of the First Amendment was implicated here, however, we granted certiorari. 503 U.S. ----, 112 S.Ct. 1472, 117 L.Ed.2d 616 (1992).

However, there are other keywords which turn out to be crucial to the argumentation made in the court opinion and these include 'applicability', 'neutral', 'neutrality', 'underinclusive', 'unnecessarily'  and  'scrutiny'.  To  appreciate  the  relevance  of  these  and  other  keywords,  it  is  instructive  to consider the summary of conclusions reached by the Court and reproduced below from the website of the Oyez, a free law project from Cornell's Legal Information Institute (LII), Justia, and ChicagoKent College of Law. The keywords have been italicized 7 :

The  Court  held  that  the ordinances were  neither neutral nor  generally applicable .  The ordinances  had  to  be  justified  by  a  compelling governmental interest  and  they  had  to  be narrowly tailored to that interest. The core failure of the ordinances were that they applied exclusively to the church . The ordinances singled out the activities of the Santeria faith and suppressed  more religious conduct  than  was necessary to  achieve  their  stated  ends.  Only conduct tied to religious belief  was  burdened. The ordinances targeted religious behavior, therefore they failed to survive the rigors of strict scrutiny .

4 The keyword list does not include keywords referring to past cases of precedential value, such as 'cantwell', e.g. Cantwell vs. Connecticut .

5  https://www.law.cornell.edu/constitution/first\_amendment (last viewed 9th January 2023).

6  https://www.oyez.org/cases/1992/91-948; last viewed 5th January 2023).

7  It should be noted that the keywords are lemmas so the specific word forms found in the text may vary.

The presence of keywords associated with scope and applicability is evident of the Court's strategy to examine the texts of the challenged local law to determine whether it meets the criteria of neutrality and general applicability. The court opinion points to the Smith Test 8 as the testing method. The two-part test specifies that the government may burden religious practice if a law is 'neutral' and generally 'applicable.' In addition, as the opinion clarifies, a law failing to satisfy these requirements must be justified by a 'compelling governmental interest' and must be 'narrowly tailored' to advance that interest.

Thus,  the  keyword  overview  provides  a  useful  overview  of  the  starting  point  and  main argumentation lines adopted in the SCOTUS court's opinion. The court opinion will first analyse whether the ordinances meet the neutrality and the general applicability requirements. Then it will apply the compelling interest standard to determine whether the local government (the city council) has chosen a narrowly tailored and the least restrictive means to achieve a compelling governmental objective. We now turn to consider keywords identified in the Polish case.

Table 3: Fifty keywords extracted from the Constitutional Tribunal justification

|   Lemma | Lemma                       | Frequency   | Frequency   |    | Lemma                          | Frequency   | Frequency   |
|---------|-----------------------------|-------------|-------------|----|--------------------------------|-------------|-------------|
|         |                             | Fo- cus     | Ref.        |    |                                | Fo- cus     | Ref.        |
|      1. | zwierzę 'animal'            | 416         | 139         | 26 | podczas 'during'               | 43          | 160         |
|      2. | ubój 'slaughter'            | 332         | 63          | 27 | szczególny 'special'           | 76          | 826         |
|      3. | rytualny 'ritual'           | 200         | 13          | 28 | gospodarski 'farm'             | 33          | 1           |
|      4. | religia 'religion'          | 131         | 24          | 29 | człowiek 'human'               | 46          | 328         |
|      5. | religijny 'religious'       | 113         | 75          | 30 | rada 'council'                 | 88          | 1214        |
|      6. | żydowski 'Jewish'           | 92          | 4           | 31 | żywność 'food'                 | 29          | 5           |
|      7. | wyznanie 'faith'            | 90          | 18          | 32 | poddawać 'subject'             | 29          | 48          |
|      8. | wolność 'freedom'           | 207         | 1375        | 33 | koszerny 'kosher'              | 26          | 0           |
|      9. | uśmiercać 'kill'            | 70          | 37          | 34 | tradycja 'tradition'           | 27          | 24          |
|      10 | metoda 'method'             | 74          | 159         | 35 | przewidywać 'provide for'      | 45          | 422         |
|      11 | wnioskodawca 'petitioner'   | 148         | 1175        | 36 | generalny 'general'            | 82          | 1238        |
|      12 | wyznaniowy                  | 70          | 129         | 37 | wymagać 'require'              | 58          | 730         |
|      13 | dokonywać 'carry out'       | 87          | 431         | 38 | praktykować 'practise'         | 24          | 6           |
|      14 | rzeźnia 'slaughterhouse'    | 56          | 4           | 39 | cierpienie 'suffering'         | 23          | 5           |
|      15 | mięso 'meat'                | 52          | 0           | 40 | związek 'union'                | 115         | 2172        |
|      16 | obrzęd 'ritual'             | 52          | 4           | 41 | sumienie 'conscience'          | 23          | 20          |
|      17 | zakaz 'prohibition'         | 75          | 360         | 42 | legitymacja 'legitimacy'       | 25          | 68          |
|      18 | konwencja 'convention'      | 70          | 301         | 43 | według 'according to'          | 33          | 265         |
|      19 | ogłuszyć 'deafen'           | 49          | 6           | 44 | polski 'Polish'                | 54          | 787         |
|      20 | rozporządzenie 'regulation' | 137         | 1393        | 45 | bezwzględny 'total'            | 24          | 90          |
|      21 | ochrona 'protection'        | 175         | 1995        | 46 | prokurator 'attorney'          | 80          | 1463        |
|      22 | uzewnętrzniać 'manfest'     | 42          | 5           | 47 | stwierdzić 'find'              | 74          | 1317        |
|      23 | judaizm 'Judaism            | 39          | 0           | 48 | przewidzieć 'provide for'      | 47          | 672         |
|      24 | moralność 'morality'        | 38          | 29          | 49 | dopuszczalność 'accessibility' | 33          | 332         |
|      25 | wyznawca 'believer'         | 36          | 2           | 50 | wyłącznie 'exclusively'        | 37          | 438         |

There is a considerable overlap between the two sets of keywords. The Polish text uses lexis denoting institutional actors and legal instruments (e.g. wnioskodawca 'petitioner', rozporządzenie

8  The test was introduced in Employment Division, Department of Human Resources of Oregon v. Smith (1990).

'regulation ',  konwencja 'convention',  religion  and  faith  ( religia 'religion', judaizm 'Judaism', wyznanie 'faith', obrzęd 'ritual',  etc.),  The  object  of  adjudication,  i.e.  the  admissibility  of  ritual slaughter,  is discussed using keywords such as ubój 'slaughter', rytualny 'ritual', paying attention to the method of killing (the keywords uśmiercać 'kill', ogłuszyć 'deafen', rzeźnia 'slaughterhouse', etc. However, there is also a distinct category of keywords that appear to indicate abstract concepts: wolność 'freedom',  ochrona  'protection' ,  człowiek 'human',  as  in go dność  człowieka 'human dignity', moralność 'morality', sumienie 'conscience' and tradycja 'tradition'.

These keywords represent likely candidates for legal topoi and the starting points for the ensuing argumentation.  They  seem  to  suggest  a  predominantly  axiological  basis  for  the  Constitutional Tribunal's argumentation. A strong presence of value-indicating lexis might also suggest that the justification  will  rely  on  weighing  and  balancing  as  a  form  of  argument  to  address  the  issue  of competing values and principles (Alexy 2002).

## 5. Pragmatic argumentation as a general strategy in SCOTUS justification

It  is  only at the beginning of the court opinion that judge Kennedy invokes the 'high' and 'more abstract' principle that prevents government from enacting laws that could suppress religious belief or  practice  (508  U.S.  520,  par.  1).  It  is  the    fundamental  non-persecution  principle  of  the  First Amendment which stands for the essential commitment to religious freedom. The invoked principle becomes  only  more  specific  as  the  argumentation  progresses  (emphasis  in  italics  added  in  all examples):

- 2) In  our  Establishment  Clause  cases  we  have  often  stated  the principle that  the  First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.

There is certainly huge persuasive potential in relying on abstract and universal values because they help to elicit agreement from a universal audience (Perelman & Olbrechts-Tyteca 1969). However, they are effective as long as their content does not need to be specified and then an argument based on such value must match the expectations of a specific audience. If the court opinion relies on values as starting points in argumentation in this case, it does so sparingly and it soon moves on to consider medium and low-level principles and standards.  These usually adopt the form of rules and standards:

- 3) We turn next to a second requirement of the Free Exercise Clause, the rule that  laws burdening religious practice must be of general applicability.
- 4) In this case we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.

As can be seen, the court's reasoning remains focused on the ordinances and the scope of their applicability. It is not concerned with extra-legal values or issues, for example, those related to public morals.  In addressing the major constitutional law question of whether the ordinances failed to comply with the free exercise clause, the US court looked into the scope of their application. Indeed, general applicability was linked expressly to neutrality. As the court opinion made it clear 'failure to satisfy one requirement is a likely indication that the other has not been satisfied' (508 U.S. 520). Importantly, the court admitted of the possibility that either requirement could not be met. In that case, the law should demonstrate a 'compelling governmental interest'  and 'it must be narrowly tailored to advance that interest' (ibid.). The thrust of the Court's reasoning goes into determining the scope of the challenged ordinances. As we have seen in the previous section, this is reflected in several  keywords  and  evaluative  lexis  associated  with  the  notion  of  'scope':  'underinclusive', 'overinclusive',  'narrowly',  'narrow',  'overbroad' . The following excerpt from the court opinion illustrates this use (emphasis in italics added):

- 5) First, even were the governmental interests compelling, the ordinances are not drawn in narrow terms to accomplish those interests. As we have discussed, see supra, at 16-18, 21-24, all four ordinances are overbroad or underinclusive in substantial respects. The proffered objectives are not pursued with respect to analogous non-religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. The absence of narrow tailoring suffices to establish the invalidity of the ordinances (508 U.S. 520).

As can be seen, the assessment of the scope is carried out using dichotomous and evaluative lexis ( overbroad and underinclusive ). It should be noted that the adjective narrow is used in its technical sense connected with standard of review, a test applied in cases of discriminatory laws. This means that, placed under strict scrutiny, the government must prove it has chosen a narrowly tailored means to achieve a compelling governmental objective. Crucially, the government must demonstrate that it has chosen the least restrictive means of achieving its compelling government objective 9 . And that is exactly what the Court found lacking in this case.

Strong  pragmatic  concerns  can  also  be  found  in  the  way  the  court  pays  attention  to  the consequences of applying the law enacted in the ordinances. In its opinion, the court evaluates the professed goals of the legislation by pointing out their unfavourable consequences:

- 6) Respondent  claims  that  Ordinances  87-40,  87-52,  and  87-71  advance  two  interests: protecting  the  public  health  and  preventing  cruelty  to  animals. The  ordinances  are underinclusive for those ends. They fail to prohibit non-religious conduct that endangers these interests in a similar or greater  degree  than  Santeria  sacrifice  does.  The underinclusion is substantial, not inconsequential.

In Example (6), the Court shows that the negative consequences result from the legislator's omission and failure to ensure the proper scope of the enacted law. However, there are also instances where the Court attributes negative consequences directly to the contested legislation:

- 7) We need not decide whether the Ordinance 87-72 could survive constitutional scrutiny if it  existed  separately;  it  must  be  invalidated  because it  functions ,  with  the  rest  of  the enactments in question, to suppress Santeria religious worship.
- 8) It becomes evident that these ordinances target Santeria sacrifice when the ordinances' operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object.

The ordinance is assessed on the basis of its legal effect. Worth noting is the use of the word target which in this context connotes negative conduct on the part of the local authorities.  There are as many as 18 instances where different forms of the lemma target are used. They function as a means to further assess negatively the scope of the application which results in unfair and discriminatory treatment:

- 9) There are further respects in which the text of the city council's enactments discloses the improper attempt to target Santeria.

The focus on consequentialist reasoning is a familiar technique in legal argumentation (Carbonell 2013).  It  is  typically  used  for  showing  legal  and/or  non-legal  consequences.  The  former  are associated with consistency and coherence within the legal system, while the latter are examined with regard to implications in the extra-legal social reality. It appears that in this case, it is the latter consequences that the court focuses on.

9  https://www.wneclaw.com/conlaw/standardsofreview.html (last viewed 10th January 2023)

## 6. A hierarchic ordering of abstract and specific values as a general strategy in the Constitutional Tribunal justification

In contrast to the SCOTUS justification, there is a distinct class of keywords in the Polish opinion which reveals strong axiological concerns by referring to high values and theories. It is the principle of  freedom of conscience and religion that should be viewed as the legal commonplace and the starting point for the ensuing argumentation. Its importance and justification  is clearly reinforced by the Tribunal, as illustrated in Example (10) relying on value-based language:

- 10) Wolność wyznania, określana w polskim porządku konstytucyjnym wolnością religii, jest fundamentalną (podstawową) wolnością człowieka. Już wstęp do Konstytucji podkreśla znaczenia  wiary  jako  źródła  prawdy,  sprawiedliwości,  dobra  i  piękna. [Freedom  of religions  is  a  fundamental  (basic)  freedom  of  man.  The  preamble  to  the  Constitution emphasizes the importance of faith as a source of truth, justice, good and beauty] 10 .

The references to freedom of religion and to the divine sources of 'truth', 'justice', 'goodness' and 'beauty'  are  followed  by  invoking  'human  dignity'  as  a  transcendental  value  that  forms  the axiological bedrock of the entire constitutional order (K52/13, par. 225). Invoking human dignity is a standard practice in human rights cases (see, e.g. McCrudden 2008) but in this case, it is used as the sole basis for recognizing the freedom of religion as the governing idea. This enables the court to establish a hierarchy of values. A hierarchic ordering of values can be seen in rejecting animal welfare as a specific value relevant to the present case:

- 11) Niemniej wartość w postaci troski o dobrostan zwierząt gospodarskich podczas uboju nie została wskazana w art. 53 ust. 5 Konstytucji i art. 9 ust. 2 Konwencji jako przesłanka, która  mogłaby  uzasadniać konieczność  ograniczenia wolności  religii  (wyznania).[ The value  of  caring  about  animal  welfare  is  not  mentioned  in  Art.  53,  Section  5  of  the Constitution and in Article 9, Section 2 of the Convention as a premise that could justify the limitation of the freedom of religion].

It should be noted that, unlike its US counterpart, the Polish court applies a  comparative approach by  referring  to  the  European  Convention  on  Human  Rights  and  the  EHRC  caselaw  to  place  the freedom  of  religion  alongside  the  freedom  of  conscience  and  the  freedom  of  thought,  all  three forming the cornerstone of any rule of law democracy. What bears upon the final decision in this case is that the freedom of religion is also understood as a freedom to manifest one's religion and the state cannot evaluate religious beliefs or the means through which it is expressed (K52/13, par. 236). The Tribunal concedes that ritual slaughter is indeed a form of manifestation of a religion. It uses a linguistic argument to point out the connection between the etymology of the Polish word rytuał (Eng. ritual) and established forms of religious practices (K52/13, par. 250). The Tribunal concludes that  under  the  Polish  constitutional  order,  animal  slaughter  using  methods  required  by  religious rituals is protected as a freedom of religion safeguarded by art. 53, section 1 and 2 of the Constitution.

As can be judged from this account, the Tribunal's conclusion is supported solely by invoking high and abstract values of truth, justice, good and beauty, followed by human dignity, freedom of religion and the rule of law. However, there are other, more specific values considered in the context of weighing and balancing as the main form of argumentation used by the Tribunal to compare values and principles as a constitutive step in the process of reaching and justifying its judicial decision 11 . In general, balancing is about 'determining the priority among competing demands or requirements according to their importance in the concrete case' (Sieckmann 2013, p. 191) and it has its roots in the  so-called  'theory  of  principles'  proposed  in  Alexy  (2002).  Alexy  argues  that  weighing  and balancing is necessary in case two principles collide. Weighing and balancing involves determining the importance of the principles relevant to the case and judging whether the importance of satisfying one principle justifies the detriment or non-satisfaction of the other (Feteris 2017).

10 All the English translations are literal to keep as close as possible to the Polish source texts and are provided by the author.

11 The terms 'balancing' and 'weighing' are treated in this paper as synonymous and are also understood as referring to the  so-called principle of proportionality common in European constitutional courts' reasoning (see Virgílio Afonso da Silva 2011).

In the case before the Constitutional Tribunal, the judges asserted that a freedom to manifest a religion may be limited only through a legislative enactment and only if such limitation is necessary in order to protect public safety, order, health, morality or the freedom and the rights of other people (K52/13,  par.  259).  In  keeping  with  the  general  principle  of  proportionality,  the  judges  had  to determine whether the principle of a freedom of religion could be 'balanced away' in favour of concerns over public health and morals. While the health concerns were dismissed by the Tribunal as irrelevant due to strict sanitary regulations (K52/13, par. 274), more space was devoted to the impact of ritual slaughter upon public morals.

Arguments against any negative impact of ritual slaughter are strictly axiological. Asserting that Polish society attaches considerable importance to religion and the freedom of its manifestation, the Tribunal  concluded  that  freedom  of  religion  is  not  only  enshrined  in  the  constitution  and  the Convention but it is also a fundamental value in the Polish society (K 52/13, par. 287). Further, the Tribunal's  stance  on  public  morality  was  supported  in  the  justification  by  reference  to  the Constitution preamble and the values originated with the Judeo-Christian tradition. In other words, the Tribunal argued that moral norms shared by the majority of society are more likely to elicit respect for the freedom of religion rather than its limitation through a total ban on ritual slaughter. In the Tribunal's view, the challenged provision (Art. 34, Section 1 of the Law on Protection of Animals) places  excessive  and  disproportionate  limitations  on  manifesting  a  religion.  Further,  the  law incorrectly weighs the proportion between the constitutional value of animal protection and welfare and the freedom of religion, especially in light of severe penal sanctions that the law introduced. Referring to the decision of the German Federal Court of Administration (3 C 30.05 dated 23 of November 2006), priority is afforded to constitutional provisions guaranteeing freedom of religion rather than animal protection.

## 7. Discussion and Conclusions

The  analyses  provided  in  this  paper  have  demonstrated  that  in  affording  priority  to  freedom  of religion,  the  courts    resort  to  radically  different  strategies  of  justification.  The  main  difference concerns the level  at  which  reasoning  and  justifying  constitutional  arguments  is  conducted.  The Constitutional  Tribunal's  justification  rests  on  highest  values  invoking  abstract  concepts  and generalisations ('truth', 'justice', 'goodness' and 'beauty'), as well as specific values used as legal principles ('human dignity', 'freedom of religion', 'the rule of law', 'public morality'). Most of these concepts are open-ended and hard to specify and the Tribunal leaves them largely undefined except when referring to its own previous decisions in which they are mentioned. Adopting the strategy of a  hierarchic  ordering  of  abstract  and  specific  values enables  the  Constitutional  Tribunal  to  deny animal  welfare  the  same  level  of  protection.  The  strategy  involves  weighing  and  balancing  the principle of religious freedom and the value of animal welfare and protection. Animal welfare as posited as a value that does not justify the interference with the higher value of religious freedom. The justification concludes that protecting animals against unnecessary suffering is irrelevant for public morality because it is not socially harmful.

In  contrast,  judicial  reasoning  in  the  US  opinion  uses  the  principle  of  freedom  of  religion, enshrined in First Amendment, only as a starting point to indicate the governing idea that steers the justification towards the desirable solution. The court shies away from engaging in abstract reasoning to invalidate a law enacted by the local legislature. Instead, Justice Kennedy, who drafted the court opinion, chooses to base the argumentation on low-level and medium-level principles translated into concrete rules and standards. The Court is intent on seeking a solution to resolve a conflict between two  incommensurable  principles.  It  does  so  very  pragmatically  by  referring  to  the  specific circumstances of the case and analysing the legal and social effects triggered by the contested local law.  In terms of linguistic means, the US Supreme Court opinion relies consistently on a set of evaluative lexical items in the semantic domain of 'scope' to express the evaluating function of the contested local law provisions (e.g. underinclusive, overinclusive, narrowly, narrow, overbroad ). In addition, evaluative lexis is used to construct the negative assessment of the effect of the local law.

The difference between the strategies could be explained in light of the  concept of 'incompletely theorized agreement'. Sunstein (2007) uses this concept to account for the phenomenon of reaching agreements  despite  the  existence  of  diverse  values.  He  argues  that  'people  can  often  agree  on constitutional practices, and even on constitutional rights, when they cannot agree on constitutional theories.  In  other  words,  well-functioning  constitutional  orders  try  to  solve  problems  through incompletely  theorized  agreements'  (2007,  p.  3).  In  the  context  of  adjudicating  hard,  morallysensitive cases, this means that judges are capable of agreeing on the (un)constitutionality of a given practice  even  when  the  theories, concepts  or values that  underpin  their  judgments may radically differ. In the actual judicial decision-making, judges could agree not only on the outcome, but also on its rationale by offering low-level or mid-level principles. As could be seen in Section 6, lowlevel or mid-level principles assume the form of rules or standards derived from or referring to rules at a higher level of abstraction and generality and their application helps to avoid engaging in largescale theoretical conflicts. Broad and abstract reasoning is something that American judges try to avoid  because  finding  a  compromise  in  a  case  where  both  parties  invoke  highest  values  and abstractions can be extremely difficult.

The expressive function of law means that judges through their decisions have a role in reflecting and communicating particular ways of valuing human goods. To achieve any degree of success with their  audiences,  arguments  have  to  proceed  from  premises  that  are  acceptable  to  the  multiple audiences. In modern, well-functioning democracies, this means not only legal audiences (the fellow judges ('the bench'), lower court justices, litigants, legal community, legislators, but also government officials, news outlets and the public. As American Supreme Court Justice Oliver Wendell Holmes famously  stated    'General  principles  do  not  decide  concrete  cases' 12 .  While  this  aphorism  was clearly intended for the US common-law model of judicial review, it could be construed as a warning that  high-level  principles  and  abstractions  inevitably  pose  the  risk  of  connoting  divergent  and incompatible ideological stances that could hinder the process of finding a compromise and common ground in any decision-making process.

## Funding

Research  reported  in  this  paper  was  supported  by Narodowe  Centrum  Nauki [National  Science Centre, Poland] under award number UMO-2018/31/B/HS2/03093.

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## Cases cited:

Church of the Lukumi Babalu Aye v. City of Hialeah,  508 U.S. 520, 113 S. Ct. 2217; 124 L. Ed. 2d 472.

- Constitutional Tribunal Judgment no. K52/13. OTK ZU 11A/2014, poz. 118 Dz.U. z 2014 r. poz. 1794, available online at https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=1&dokument=11699&sprawa=12495 (last viewed 25 th  January 2023).

## Internet sources

Cornell Law School, Legal Information Institute https://www.law.cornell.edu/constitution/first\_amendment https://www.oyez.org/cases/1992/91-948; (last viewed 5th January 2023).

[Western New England University School of Law https://www.wneclaw.com/conlaw/standardsofreview.html](https://www.wneclaw.com/conlaw/standardsofreview.html)