Law and Logic: A Critical Account of Legal Argument

224 Pages·1972·8.19 MB·English

by  Joseph Horovitz (auth.)

Library of
Exact Philosophy
Editor:
Mario Bunge, Montreal
Co-editors:
Sir Alfred Jules Ayer, Oxford
Rudolf Carnap t, Los Angeles, Calif.
Herbert Feigl, Minneapolis, Minn.
Victor Kraft, Wien
Sir Karl Popper, Penn
Springer-Verlag Wien New York
Library of Exact Philosophy 8
Joseph Horovitz
Law and Logic
A Critical Account
of Legal Argument
Springer-Verlag Wien New York 1972
Printing type: Sabon Roman
Composed and printed by Herbert Hiessberger, Pottenstein
Binding work: Karl Scheibe, Wien
Design: Hans Joachim Boning, Wien
ISBN-13: 978-3-211-81066-8 e-ISBN-13: 978-3-7091-7111-0
DOl: 10.\007/978-3-7091-7111-0
This work is subject to copyright.
All rights are reserved,
whether the whole or part of the material is concerned,
specifically those of translation, reprinting, re-use of illustrations,
broadcasting, reproduction by photocopying machine or similar means,
and storage in data banks.
© 1972 by Springer-Verlag/Wien
Library of Congress Card Number 72-76386
Sotlcover reprint of the hardcover I st Edition 1972
To Sara
General Preface to the LEP
The aim of the Library of Exact Philosophy is to keep alive the
spirit, if not the letter, of the Vienna Circle. It will consequently
adopt high standards of rigor: it will demand the clear statement
of problems, their careful handling with the relevant logical or
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results of every piece of philosophical research.
Like the Vienna Circle, the Library of Exact Philosophy sees in
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and methods of philosophy. The Library of Exact Philosophy will
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the Library of Exact Philosophy will welcome not only logic,
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Montreal, January 1970
Mario Bunge
Acknowledgments
This book originated from my doctoral thesis, prepared at the
Hebrew University in Jerusalem under the supervision of Professor
YEHOSHUA BAR-HILLEL1. I am deeply grateful to him for his inspira
tion and guidance.
The following persons, either by their support of my requests
for leave and funds or by their encouragement, advice, and con
structive comments, helped me substantially in the preparation of
the present version of my work: Professor YEHOSHUA BAR-HILLEL,
Jerusalem; Professor BEN-AMI SCHARF STEIN, Tel-Aviv; Professors
Sir ISAIAH BERLIN, HERBERT HART, and GILBERT RYLE and Mr. ALAN
MONTEFIORE, Oxford; Professor CHAlM PERELMAN, Brussels; and
Professor MARIO BUNGE, Montreal. I extend my gratitude to them
all. Grateful acknowledgments are due to Tel-Aviv University for
financial aid and a leave of absence, to the Hebrew University,
Jerusalem, for a supplementary grant, and to Linacre College,
Oxford, for a research fellowship.
I wish to thank all those, too numerous to be named, who con
tributed to the stylistic aspects of the book.
Last but not least, I acknowledge my indebtedness beyond
repayment to my wife SARA for her unfailing supply of encourage
ment and comfort throughout my work, as well as for her expert
and indefatigable typing of the several drafts of the manuscript.
I need hardly declare that responsibility for any shortcomings
this study may have is entirely mine.
New York, May 1972 Joseph Horovitz
1 The Problem of the Logical Specificity of Legal Argument, in
Hebrew, submitted in 1965, unpublished.
Contents
General Introduction 1
Part I
The German Discussion 16
Introduction 16
Chapter 1
A Pseudoformalistic Position: KIug 18
1. The Concept of Legal Logic 18
2. Discussion of Antilogical Doctrines. Legal Confirmation.
The Background of Legal Logic 24
3. Analogical Inference. (Formal) Logic and Heuristic "Logic".
Creative Judgment and Semantic Interpretation 32
4. Legal Inference by Inversion.
The Metalegal Character of Its Conclusion 44
5. Conversion of Law Into a Calculus. Legal "Teleologies" 48
Chapter 2
Two Nonformalistic Positions: Engisch and Simitis S3
1. Engisch on Law and Axiomatics 53
2. Engisch on the Nature of Legal Knowledge 54
3. Engisch's Concept of Material Legal Logic 56
4. Simitis on "the Problem of Legal Logic" 60
XIV Contents
Chapter 3
An Axiologistic Position: Heller 65
1. The Logicians' and the Lawyers' Analogical Inference.
The Inductive Nature of Legal Argument 65
2. Legal Logic Is Essentially Deontic. The Problem of Subsumption.
The Intuitive Character of Legal Argument in Practice 68
3. The Empirical Nature of Legal Confirmation 72
Conclusion and Supplementary Observations 77
Part II
The Belgian Discussion 83
Introduction 83
1. Perelman and Kazemier on the Logical Specificity of Law 88
2. Kalinowski's Denial of the Specificity of Legal Logic 91
3. Kalinowski on Interpretation: (i) Authenticity, Meaning,
and the Resolution of Contradictions 93
4. Kalinowski on Interpretation: (ii) The Elimination of Lacunae 95
5. Feys and Motte on "Legal Logic, Legal Systems" 100
6. Perelman on "Formal Logic, Legal Logic" 105
7. Gregorowicz on "the Argument a Maiori ad Minus and the Problem
of Legal Logic": (i) General Stand, and Views Disavowed 109
8. Gregorowicz on "the Argument a Maiori ad Minus and the Problem
of Legal Logic": (ii) Views Avowed and Constructive Ideas 116
Conclusion and Supplementary Observations 123
Part III
The Discussion in the English-Speaking Countries 134
Introduction 134
1. Stone on "Uses and Limitations of Formal Logic
in Legal Reasoning" 139
2. Levi: Legal Argument as a Reflection of Social Change 143
3. Hart on "the Ascription of Responsibility and Rights" 148
4. Hart on "Definition and Theory in Jurisprudence" 156
5. Jensen: Legal Argument as a Nonlogical Mode of Decision 160
6. Toulmin: Legal Argument as Archetype of Argument in General 167
7. Hart on "Formalism and Rule-Scepticism" 176
Conclusion and Supplementary Observations 187
Contents xv
General Conclusion 196
Appendix
Concerning the Third Edition of Klug's "Juristische Logik" 199
List of References 202
Index of Names 207
Subject Index 209