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Four Alleged Paradoxes in Legal Reasoning

Published online by Cambridge University Press:  16 January 2009

Laurence Goldstein
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Extract

There can be no doubt that the existence of paradoxes has stimulated vigorous and highly productive activity in philosophy and in logic. Take two famous examples: The Liar Paradox, which arises from a sentence such as

L This statement is false.

and the Russell Paradox which arises from the sentence

R The class of all classes which are not members of themselves

is a member of itself.

The first of these has been a source of anguish for over 2,000 years. The second has engaged the serious attention of logicians for over three quarters of a century. Investigation of paradoxes of this sort has spawned whole new fields of study, such as technical semantics and axiomatic set theory.

It has been claimed that legal reasoning is infected with paradoxes and that these paradoxes are similar in structure to those, like the two we have cited, which are of interest to the logician. If this claim were true one of two consequences would follow. Either the jurisprudent would face what would in all likelihood be a protracted struggle with these legal paradoxes resulting, perhaps, in significant additions to legal theory, or else, if these paradoxes were sufficiently similar to those of the logician, he might try to utilise the logician's results to solve his own legal puzzles.

The first alternative, though attractive to a theoretician, may appear rather dismal to those engaged in the business of law. Whereas reflection on the logical paradoxes can lead to only more refined abstractions—the philosopher's meat and drink—legal theory is rather intimately connected with practical affairs.

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The Cambridge Law Journal , Volume 38 , Issue 2 , November 1979 , pp. 373 - 391
Copyright
Copyright © Cambridge Law Journal and Contributors 1979

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References

1 (1969) 78 Mind I.

2 For a good introduction to the subject of paradoxes, see Quine, W. V., “The Ways of Paradox” in his The Ways of Paradox and Other Essays (Harvard 1966).Google Scholar

3 Ross, op. cit., p. 16.

4 In his discussion note “Professor A. Ross and Some Legal Puzzles” (1972)Google ScholarMind 415, J. Raz seeks to show that Art. 88 and any other basic norm can be formulated in such a way that self-reference is avoided.

5 Ross, op. cit., pp. 11–12. In certain cases of spurious self-reference a sentence may refer to itself qua sound-sequence; in other cases qua grammatical construction. The original source for such distinctions (though Ross omits to mention this) is Austin, J. L., How to do Things with Words (Oxford 1962).Google Scholar

6 Ross, op. cit., p. 5.

7 Ross, op. cit., p. 20.

8 (1971) 29 Cambridge Law Journal 275.

9 Hicks, op. cit., p. 277.

10 Hicks, op. cit., p. 291.

11 See Private International Law Committee, First Report (1954) Cmd. 9068, para. 23.

12 Hicks, op. cit., p. 278.

13 [1926] Ch. 692, 708–709.

14 [1930] 1 Ch. 377, 402.

15 These points were first made by Aristotle. See Metaphysics, 1011b25 and Categories, 14b20.

16 This example is suggested by Morris, J. H. C., The Conflict of Laws (London 1971), p. 469.Google Scholar

17 Morris, op. cit., p. 481.

18 See Russell, B. and Whitehead, A. N., Principia Mathematica (Cambridge 1913)Google Scholar, Chap. 2 of the Introduction.

19 Hicks, op. cit., p. 280. Ross, op. cit., p. 11.

20 Hicks, op. cit., pp. 283, 286.

21 Hicks, op. cit., p. 281.

22 Hicks, op. cit., p. 289.

23 Hart, H. L. A., “The Ascription of Responsibility and Rights” (1949) 49 Proceedings of the Aristotelian SocietyCrossRefGoogle Scholar 171.

24 [1898] A.C. 375, hereafter sometimes referred to simply as London Street Tramways.

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28 For a thorough examination of this view, see Blackshield, A. “‘Practical Reason’ and ‘Conventional Wisdom’: The House of Lords and Precedent,”Google ScholarAustralian Society of Legal Philosophy ASLP/IVR/56a.

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31 Cross, op. cit., p. 17.

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34 Compare Kuhn's, T. S. notion of a scientific paradigm in his The Structure of Scientific Revolutions (Chicago 1962).Google Scholar

35 I should like to thank Dr. Peter Wesley-Smith and Dr. Roda Mushkat for their helpful comments on drafts of this paper.