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Outline of a Logical Analysis of Law

Published online by Cambridge University Press:  14 March 2022

Felix E. Oppenheim
Felix E. Oppenheim*
Affiliation:
Princeton University
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Extract

This study purports to demonstrate the possibility of applying logical analysis in the field of jurisprudence, and the usefulness of this method for exhibiting some essential features of the law.

logical analysis applies to language systems. To carry out the logical analysis of a language, is to construct a simplified model language “in close connection with” the given language, and to study the conditions of validity of the sentences of this model language. The given language is subjected to a kind of purifying chemical process. To deal with this simplified language seems to be a detour; it is, however, the most direct way to an ultimate insight into the logical structure of the given language.

Type
Research Article
Information
Philosophy of Science , Volume 11 , Issue 3 , July 1944 , pp. 142 - 160
Copyright
Copyright © The Philosophy of Science Association 1944

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References

1 R. Carnap, Introduction to Semantics (1942), p. 155.

2 Cf. E. Hexner, Studies in Legal Terminology (1941), p. 39.

3 J. W. Bingham, What is the Law? (XI Michigan Law Review (1912–1913), p. 109).

4 “For we as lawyers, like the physical scientists, are engaged in the study of objective physical phenomena. Instead of the behavior of electrons, atoms or planets, however, we are dealing with the behavior of human beings.” W. W. Cook, The Logical and Legal Bases of the Conflict of Laws (33 Yale Law Journal (1928), p. 475).

5 R. Carnap, Foundations of Logic and Mathematics (1939), p. 30.

6 M. Radin, Law as Logic and Experience (1940), p. 38.

7 Morris R. Cohen, Law and the Social Order (1933), p. 174.

8 Section 1295 and 1297 of the New York Penal Code: “Grand larceny ... is punishable by imprisonment. ...”

9 Ibid., Section 1045: “Murder in the first degree is punishable by death. ...”

10 Ibid., Section 1043: “Homicide is: 1. Murder; or, 2. Manslaughter. ...”

11 Gibbons v. Ogden—6 Wheat (1824).

12 Gibbons v. Ogden—6 Wheat (1824).

13 R. Carnap, Introduction to Semantics (1942), p. 10.

14 The fact that the first and third sentence has imperative character will be discussed in the next chapter.

15 Morris R. Cohen, A Critical Sketch of Legal Philosophy in America (in: Law, A Century of Progress (1937), Vol. II, p. 295).

16 One could, of course, take the expression 'is to be punished ...' in the sense of 'there are agencies charged with punishing. ..'. In this case, the latter sentence would also have declarative meaning, but it would not be a rule of law. As such, it can only be taken in the imperative sense.

17 For the distinction between syntactical, semantical and pragmatical (infra, p. 24) features, cfr. C. W. Morris, Foundations of the Theory of Signs (1938). Many valuable ideas of this book have been used in the present study.

18 Art. 1044 and 1046 of the New York Penal Code: “The killing of a human being is murder ..., when committed ... from a design to effect the death of the person killed or of another. ...”

19 A. C. Freeman, On Judgments, fifth edition (1925), p. 744.

20 Ibid., p. 747. The court argued in this case: “This judgment, even if it be erroneous, is not void; it ... can only be annulled or set aside by appeal or writ of error, taken for that very purpose. Courts have the inestimable privilege of rendering wrong decisions, and these decisions ... pass muster and pass current until (possibly and perhaps) reversed on error brought or appeal taken.” (Lacy v. Brandhorst (1900), 156 No. 457).

21 Unlike S1, S2 which states: ‘S1 is non-valid’, does not belong to A, since it speaks about a sentence of A. Cfr. infra, p. 34.

22 Like the definition of enforceability, this principle does not belong to A. Cfr. infra, p. 36.

23 Strictly speaking, this last sentence does not belong to B, but to a language which we might call C: it is a sentence about sentences about sentences of A. How many levels we need depends upon the field of law whose model language we intend to construct and to analyze.

24 Our distinction between levels is thus a purely logical one and has nothing to do with Kelsen's “Stufenbau.”

25 But as sentences of law they have no official quality and are therefore neither enforceable nor (legally) valid; they may only be correct and true.