Law and Logic: A Critical Account of Legal Argument

ISBN-13: 9783211810668 / Angielski / Miękka / 1972 / 214 str.

Joseph Horovitz

Opis

This book has two related aims: to investigate the frequently voiced claim that legal argument is nonformal in nature and, within the limits of such an investigation, to ascertain the most general proper- ties of law as a rational system. Examination of a number of views of legal argument, selected from recent discussions in Germany, Belgium, and the English-speaking countries, will lead to the follow- ing main conclusions. The nonformalistic conceptions of the logic of legal argument are ambiguous and unclear. Moreover, insofar as these conceptions are capable of clarification in the light of recent analytical methodology, they can be seen to be either mistaken or else compatible with the formalistic position. Because law is socially directive and coordinative, it is dependent upon theoretical psycho- sociology and calls, in principle, for a deontic and inductive logic. The primary function of legal argument is to provide continuing reinterpretation and confirmation of legal rules, conceived as theo- retical prescriptions. On the basis of this conception, the old juris- prudential conflict between formalism and rule-scepticism appears substantially resolved. Aristotle, the founder of the theory of argument, conceived it as "the science of establishing conclusions" (bnO'l; fl'YJ &no e "u, ), designed to guide people in rational argumentation. In time, how- ever, logic forsook its practical function and developed as a highly abstract and disinterested study, today called "formal logic"; and the theory of practical argument was either neglected or relegated to an appendix to rhetoric.

Spis treści

General Introduction.- I The German Discussion.- 1 A Pseudoformalistic Position: Klug.- 1. The Concept of Legal Logic.- 2. Discussion of Antilogical Doctrines. Legal Confirmation. The Background of Legal Logic.- 3. Analogical Inference. (Formal) Logic and Heuristic “Logic”. Creative Judgment and Semantic Interpretation.- 4. Legal Inference by Inversion. The Metalegal Character of Its Conclusion.- 5. Conversion of Law Into a Calculus. Legal “Teleologics”.- 2 Two Nonformalistic Positions: Engisch and Simitis.- 1. Engisch on Law and Axiomatics.- 2. Engisch on the Nature of Legal Knowledge.- 3. Engisch’s Concept of Material Legal Logic.- 4. Simitis on “the Problem of Legal Logic”.- 3 An Axiologistic Position: Heller.- 1. The Logicians’ and the Lawyers’ Analogical Inference. The Inductive Nature of Legal Argument.- 2. Legal Logic Is Essentially Deontic. The Problem of Subsumption. The Intuitive Character of Legal Argument in Practice.- 3. The Empirical Nature of Legal Confirmation.- Conclusion and Supplementary Observations.- II The Belgian Discussion.- 1. Perelman and Kazemier on the Logical Specificity of Law.- 2. Kalinowski’s Denial of the Specificity of Legal Logic.- 3. Kalinowski on Interpretation: (i) Authenticity, Meaning, and the Resolution of Contradictions.- 4. Kalinowski on Interpretation: (ii) The Elimination of Lacunae.- 5. Feys and Motte on “Legal Logic, Legal Systems”.- 6. Perelman on “Formal Logic, Legal Logic”.- 7. Gregorowicz on “the Argument a Maiori ad Minus and the Problem of Legal Logic”: (i) General Stand, and Views Disavowed.- 8. Gregorowicz on “the Argument a Maiori ad Minus and the Problem of Legal Logic”: (ii) Views Avowed and Constructive Ideas.- Conclusion and Supplementary Observations.- III The Discussion in the English-Speaking Countries.- 1. Stone on “Uses and Limitations of Formal Logic in Legal Reasoning”.- 2. Levi: Legal Argument as a Reflection of Social Change.- 3. Hart on “the Ascription of Responsibility and Rights”.- 4. Hart on “Definition and Theory in Jurisprudence”.- 5. Jensen: Legal Argument as a Nonlogical Mode of Decision.- 6. Toulmin: Legal Argument as Archetype of Argument in General.- 7. Hart on “Formalism and Rule-Scepticism”.- Conclusion and Supplementary Observations.- General Conclusion.- Concerning the Third Edition of Klug’s “Juristische Logik”.- List of References.- Index of Names.