Abstract
The questions about the relation between the fields of logic and that of prescriptive norms represent only one of the aspects of a broader field of investigation concerning the possible connections between philosophy and law. The hybrid discipline emerging from those questions is considered today a prolific field of studies named philosophy of law or legal philosophy, where many other theoretical problems are investigated, as well as fundamental concepts that are “common” between the two areas, such as “justice”, “person”, “morality”, the justification of norms, among many others. However, even inside the legal field alone, dichotomies and tensions also emerge, being one famous example the rivalry between legal positivism and the natural law tradition, two schools of thought with drastically different principles. The focus of this paper is an analysis of how the characteristic of those two approaches of law resound in the possibilities of solving Jørgensen’s Dilemma. This dilemma deals with the question whether imperatives can be a part of a logical inference, as one of the premises or as the conclusion, and expresses our difficulty in understanding the role of imperatives in our reasoning about norms. This investigation will also help us understand the role of logic in the fields of legal positivism and legal naturalism.
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Notes
- 1.
Austin will later say: “The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation” (Austin 1832: Lecture V, p. 157).
- 2.
The main author proposing a contemporary defense of natural law is John Finnis (1940–), whose theory is also marked by problematic views on subjects like homosexuality and immigration, for example.
- 3.
My translation.
- 4.
The various objections to Anscombe’s conceptions can be seen in Douglas (2016).
- 5.
As Cabrera (1999, p. 207) reminds, the main problem concerning Jørgensen’s dilemma does not concern the fact of deriving norms from facts (or indicative sentences), but consists in logically deriving one norm from another.
- 6.
Ross is here worries about the arguments such as the type “Slip the letter into the letter-box or burn it”.
- 7.
Let us remember that an infinitive is the most basic form of a verb. It is “unmarked” (which means that it is not conjugated for tense or person), and it is preceded by the particle to. (Cf. Free Dictionary Copyright © 2003–2019 Farlex, Inc.)
- 8.
This “wanting” of the Judge certainly does not concern his personal interests or desires. As we have explained priorly, it regards the abidingness of the norm, the intention that the norm ought to be followed by all its addressees.
- 9.
Also, there seems to be more vagueness considering the sanctions to moral rules: what is the sanction for, let us say, not giving your seat to and elderly person in the bus? The effectiveness of the possible sanctions – like social discrimination – might affect some people more than others.
Bibliography
Anscombe, G. E. M. (1958). Intention. New York: Oxford University Press.
Aquinas, T. (2014 [1485]). The Summa Theologica: Complete edition [Translation: Fathers of the English Dominican province]. New York: Catholic Way Publishing.
Austin, J. (1879). Lectures on jurisprudence, or the philosophy of positive law. London: John Murray.
Austin, J. (1954 [1832]). The province of jurisprudence determined. London: The Curwen Press.
Bentham, J. (1970:2b [1945]). Of laws in general. London: Athlone
Bobbio, N. (1995). Teoria do ordenamento jurídico. Brasília: Editora Universidade de Brasília.
Bobbio, N. (2004). A era dos Direitos. Rio de Janeiro: Elsevier.
Broadie, A. (1968). The practical syllogism. Analysis, 29(1), 26–28.
Cabrera, C. A. (1999). Imperativos y lógica en Jørgen Jørgensen. Isegoría, 20, 207–215.
Canadian Criminal Code. Available at: https://laws-lois.justice.gc.ca/eng/acts/C-46/
Douglas, A. (2016). Unpicking the practical syllogism. Available at: https://medium.com/@alexanderdouglas/unpicking-the-practical-syllogism-f64570f23576
Finnis, J. (1980). Natural law and natural rights. New York: Oxford University Press.
Gauthier, D. P. (1967). Moore’s naturalistic fallacy. American Philosophical Quarterly, 4(4), 315–320.
Hume, D. (2007 [1739]). A treatise of human nature. Reprinted from the Original Edition in three volumes by L.A. Selby-Bigge, M.A. Oxford: Clarendon Press.
Jørgensen, J. (1937). Imperatives and logic. Erkenntnis, 7(1), 288–296.
Kelsen, H. (1979). General theory of norms. Oxford: Clarendon Press.
Mothersill, M. (1962). Anscombe’s account of the practical syllogism. The Philosophical Review., 71(4), 448–461.
Poincare, H. (1982 [1913]). The foundations of science: Science and hypothesis, the value of science, science and method. Lanham: University Press of America.
Ross, A. (1944). Imperatives and logic. Philosophy of Science, 11(1), 30–46.
Sievers, J. (2016). Logical concepts in legal positivism: Legal norms from a philosophical perspective. London: College Publications.
von Wright, G. H. (1957). Logical studies. London: Routledge and K. Paul.
Wood, N. (1988). Cicero’s social and political thought. Berkeley and Los Angeles: University of California Press.
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Sievers, J.M. (2022). Jørgensen’s Dilemma in the Interface Between Legal Positivism and the Natural Law Tradition. In: Rahman, S., Armgardt, M., Kvernenes, H.C.N. (eds) New Developments in Legal Reasoning and Logic. Logic, Argumentation & Reasoning, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-030-70084-3_16
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