Library of Exact Philosophy. Editor: Mario Bunge, Montreal

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2 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

3 Library of Exact Philosophy 8 Joseph Horovitz Law and Logic A Critical Account of Legal Argument Springer-Verlag Wien New York 1972

4 Printing type: Sabon Roman Composed and printed by Herbert Hiessberger, Pottenstein Binding work: Karl Scheibe, Wien Design: Hans Joachim Boning, Wien ISBN-13: DOl: 10.\007/ e-isbn-13: 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 by Springer-Verlag/Wien Library of Congress Card Number Sotlcover reprint of the hardcover I st Edition 1972

5 To Sara

6 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 mathematical tools, and a critical analysis of the assumptions and results of every piece of philosophical research. Like the Vienna Circle, the Library of Exact Philosophy sees in mathematics and science the wellsprings of contemporary intellectual culture as well as sources of inspiration for some of the problems and methods of philosophy. The Library of Exact Philosophy will also stress the desirability of regarding philosophical research as a cooperative enterprise carried out with exact tools and with the purpose of extending, deepening, and systematizing our knowledge about human knowledge. But, unlike the Vienna Circle, the Library of Exact Philosophy will not adopt a school attitude. It will encourage constructive work done across school frontiers and it will attempt to minimize sterile quarrels. And it will not restrict the kinds of philosophical problem: the Library of Exact Philosophy will welcome not only logic, semantics and epistemology, but also metaphysics, value theory and ethics as long as they are conceived in a clear and cogent way, and are in agreement with contemporary science. Montreal, January 1970 Mario Bunge

7 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 inspiration and guidance. The following persons, either by their support of my requests for leave and funds or by their encouragement, advice, and constructive 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 contributed 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 encouragement 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.

8 Contents General Introduction 1 Part I The German Discussion 16 Introduction 16 Chapter 1 A Pseudoformalistic Position: KIug The Concept of Legal Logic Discussion of Antilogical Doctrines. Legal Confirmation. The Background of Legal Logic Analogical Inference. (Formal) Logic and Heuristic "Logic". Creative Judgment and Semantic Interpretation Legal Inference by Inversion. The Metalegal Character of Its Conclusion Conversion of Law Into a Calculus. Legal "Teleologies" 48 Chapter 2 Two Nonformalistic Positions: Engisch and Simitis S3 1. Engisch on Law and Axiomatics Engisch on the Nature of Legal Knowledge Engisch's Concept of Material Legal Logic Simitis on "the Problem of Legal Logic" 60

9 XIV Contents Chapter 3 An Axiologistic Position: Heller The Logicians' and the Lawyers' Analogical Inference. The Inductive Nature of Legal Argument Legal Logic Is Essentially Deontic. The Problem of Subsumption. The Intuitive Character of Legal Argument in Practice The Empirical Nature of Legal Confirmation 72 Conclusion and Supplementary Observations 77 Part II The Belgian Discussion 83 Introduction Perelman and Kazemier on the Logical Specificity of Law Kalinowski's Denial of the Specificity of Legal Logic Kalinowski on Interpretation: (i) Authenticity, Meaning, and the Resolution of Contradictions Kalinowski on Interpretation: (ii) The Elimination of Lacunae Feys and Motte on "Legal Logic, Legal Systems" Perelman on "Formal Logic, Legal Logic" Gregorowicz on "the Argument a Maiori ad Minus and the Problem of Legal Logic": (i) General Stand, and Views Disavowed 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 Stone on "Uses and Limitations of Formal Logic in Legal Reasoning" Levi: Legal Argument as a Reflection of Social Change Hart on "the Ascription of Responsibility and Rights" Hart on "Definition and Theory in Jurisprudence" Jensen: Legal Argument as a Nonlogical Mode of Decision Toulmin: Legal Argument as Archetype of Argument in General Hart on "Formalism and Rule-Scepticism" 176 Conclusion and Supplementary Observations 187

10 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