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The Problem Of Moral Authority In Modern Jurisprudence

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The Problem Of Moral Authority In Modern Jurisprudence

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Content T h is d isse r ta tio n h as been 62— 1313
m ic r o film e d ex a ctly a s r e c e iv e d
BU R R IL L, Donald R ex, 1927—
THE PROBLEM O F MORAL AUTHORITY IN
MODERN JURISPRUDENCE.
U n iv ersity of Southern C aliforn ia
P h .D ., 1961
P h ilosop h y
University Microfilms, Inc., A nn Arbor, Michigan
THE PROBLEM OF MORAL AUTHORITY
IN MODERN JURISPRUDENCE
By
Donald Rex Burrill
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(Philosophy)
July 1961
UNIVERSITY O F SO U TH ER N CALIFORNIA
G R A D U A T E S C H O O L
U N IV E R SIT Y PARK
LO S A N G E L E S 7 . C A L IF O R N IA
This dissertation, ’ written by
D.onaid.. R ex. .Burr ill.................
under the direction of his....Dissertation Com
mittee, and approved by all its members, has
been presented to and accepted by the Dean of
the Graduate School, in partial fulfillment of
requirements for the degree of
D O C T O R O F P H I L O S O P H Y
Dean
Date. -C-
DISSERTATION COMMITTEE
CONTENTS
Chapter Page
INTRODUCTION . . . ................. 1
I THE CURRENT CONTROVERSIES
IN ETHICS..................... 7
II EMOTIVISM AND THE FOUNDATION
OF JURISPRUDENCE . . ............. 21
III EMOTIVISM: A CRITICAL
ANALYSIS............................ ^3
IV THE COMPLEXITY OF SOCIOLOGICAL
JURISPRUDENCE ..................... 84
V THE FORMALISTIC INFLUENCE ON
SOCIOLOGICAL JURISPRUDENCE ..... 102
VI SOCIOLOGICAL JURISPRUDENCE:
A CRITICAL ANALYSIS ............... 127
VII NEO-KANT IAN AND INTUITIVE
JURISPRUDENCE..................... 153
VIII INTUITIONISM: A CRITICAL
ANALYSIS............................ 179
IX MORAL AUTHORITY AND
THE L A W ............................ 200
BIBLIOGRAPHY....................... 240
11
INTRODUCTION
King Creon, on political grounds, had forbidden the
burial of Polyneices. Antigone, on religious grounds,
had defied him, and she sought justification of her act by-
making a distinction between the changing regulations of a
human ruler and the eternal laws of heaven. Creon speaks
to her. "Knowest thou the edict that forbade this deed?"
She answers:
Creon:
Antig:
When Joshua heard that the men of Ai had slain the
Israelites, he rent his clothes, and the God of Israel told
Joshua that Israel had sinned, that she had transgressed
■^Whitney J. Oates and Eugene O'Neill, Jr., eds, The
Complete Greek Drama, trans. R. C. Jebb (New York, 19k&).
I knew it. Why, how else? for it was public,
And such laws thou couldst dare to overstep?
Yes; for it was not Zeus that published them.
I did not deem your edicts of such force
That a mere mortal could o'erride the Gods'
Unwritten, never-failing ordinances
For these live not today nor yesterday
But always: none knows when they first came
forth.^
2
the covenant which He had commanded. In the morning., God
pointed out the villain, Achan. Then Joshua said to Achan,
"Why did you bring trouble on us? The Lord brings trouble
on you today." And all of Israel stoned Achan and all
his family and the "Lord turned from his burning anger."
These two examples illustrate the fact that through
the centuries men have,felt conflict between man-made and
divine law and have tried to find an ultimate basis for
prevailing law. They have sought to free themselves from
the ad hoc whimsey of men or nations, and to find security
in the eternal laws of heaven. Despite all these efforts,
however, the question still, plagues us, Is there an
ultimate authority for the law under which a society lives,
or is reference to such an authority essentially a myth?
Is law but temporary and relative, a device to meet the
changing circumstances of ever-shifting powers? In the
past, two essentially different types of answers have been
given to these questions. One type of answer tends to be
monistic. The other tends to be dualistic. The monistic
answers (or theories) limit themselves to an analysis of
p
The Holy Bible, Revised Standard Version,
Joshua 7^25.
3
the fiat which prevails in any given social order and they
avoid references to sanctions imposed by some transcendent
authority. The dualistic answers (or theories), on the
other hand, connect the legal order in a given society
with principles not inherent in that order itself, but
usually of a metaphysical nature. The thought is that
only so can the normative character of the law be pre
served at all.
It is not our purpose to trace here the rich history
of those two dominant types of theory of law. Our con
cern is the problem of authority--and especially of moral
authority--in modern jurisprudence. And here we find that
the age-old issue between the two basic types of theories
of law has as yet not been fully resolved. The problem is
complicated by the fact that moral issues are intimately
interwoven with the problem of the ultimate authority of
law.
In both areas, the moral and the legal, the key
question is that of obligation. And once the question
has been asked, Why do I have an obligation to do such and
such? the force of the argument seems to tend toward an
ultimately dualistic conclusion, no matter how sincerely
4
may "be our intention to maintain a radical monism.
There is one other aspect to our problem that must
be clearly understood. It centers around the question,
Why ought I, or why ought anybody, obey the law? To this
question, Demosthenes long ago gave the following answer:
Men ought to obey the laws for three reason:
Because they were a tradition taught by wise men .
who knew the good old customs, because they
were deductions from an eternal and immutable
moral code and because they were agreements of
men with each other, binding them because of
moral duty to keep their promises.3
These three reasons really entail three types of theories
which may be called, respectively, the historic, the
philosophical, and the analytic. The first of them re
gards law as established by custom or convention. It pro
vides a rational account of the imperative of law by
assuming the ultimate identity of legal and moral rules.
The second type Is essentially an appeal to nature or to
some transcendent authority. But it also sees significance
in the moral imperative. The third type justifies law
simply as a matter of enactment. Law is not a matter of
^Roscoe Pound, An Introduction to the Philosophy of
Law (New Haven, 192277" pp. 22, 23, 307.
5
customs, nor is it derived from some unchanging principles.
It is simply a matter of legislative enactment and is
essentially divorced from moral questions and principles
of morality.
This tripartite division, suggested in Roscoe
4
Pound's Law and Morals I shall endeavor to maintain In
my analyses.
My specific task, however, will he to analyze the
three types of theories insofar as they pertain to the
crucial question of moral authority, and I shall attempt
to make suggestions for resolving the problems as they
arise in connection with modern Jurisprudence and modern
ethical theory. In order to make clear what is at issue,
it will be helpful to present first the crucial problems
simply as problems of moral authority as such, and without
reference to jurisprudence. I shall then discuss these
same problems of authority as they pertain to the theories
of law developed by the positivists Alf Ross, H. L. A.
Hart, and Glanville Williams, in Chapters Two and Three.
In Chapters Pour, Five and Six, I shall consider the
^(Chapelhill, The University of North Carolina Press,
1926), p. 144.
6
sociological theories of Benjamin Cardozo, Underhill
Moore, and F. S. C. Northrop. Chapters Seven and Eight
analyze the contributions of intuitionism as it is offered
by Hans Kelsen and Morris Cohen and Felix Cohen. The
final chapter constitutes my own solution to this difficult
problem.
CHAPTER I
THE CURRENT CONTROVERSIES IN ETHICS
The questions of prescriptive force of the moral
ought are currently being discussed by three schools of
thought--by the emotivists, the naturalists, and the
intuitionists. I shall limit myself here to their re--
spective contributions.
I
Let us consider, first, "emotivism" and the problem
of moral authority. The contemporary mind has been par
ticularly sensitive to the question, What is the basis
for the "ought" within a given society? John Dewey's
"Irish bulls" (imperatives of a transcendental nature)
are not just windmills for the modern moral philosopher;
they lie at the very heart of the current controversy.
The "objective" status or, at least, the question of the
possibility of scientific verification of the moral ought
Is a key issue In modern ethical controversies. However,
all attempts at scientific verification of the ought have
failed because "ought" propositions cannot be logically
derived from "is" propositions.
The logical empiricists have at this point suggested
an "emotive" interpretation of the ought and, with it,
of moral authority. Most representative of this approach
are the works of Alfred J. Ayer, Rudolf Carnap, and
Charles L. Stevenson. Ayer and Carnap deal with ethics
in an iconoclastic manner, whereas Stevenson approaches
it in a more conciliatory fashion; but basically all three
are in general agreement.^
All three writers draw a sharp distinction between
"cognitive" and "emotive" meanings. All assertions which
cannot be demonstrated to be "fact (empirically verified),"
become emotive ejaculations or their equivalents. It
would be incorrect, however, to suggest that these think
ers do not take ethical questions seriously: for they do--
■^Alfred J. Ayer, Language, Truth, and Logic (London,
1936). Rudolf Carnap, Philosophy and Logical Syntax
(London, 1935)- Charles L. Stevenson, Ethics and Language
(New Haven, 19^-5).
9
and they have made a concerted effort to cope with the
2
significance of moral problems.
According to this group of thinkers, to introduce the
imperative into a sentence is not to change the actual
meaning of the sentence in question, but to add an emotion
al accent. When one says that an action is "wrong," he
has added nothing to its factual content. To say, "It was
wrong for you to steal that money," is only to say, "You
stole the money." The difference in the two sentences is
only one of feelings which may, or may not, be aroused in
the speaker. Carnap argued that all statements of cog
nitive status are conditional, i.e., they seek to predict
future occurrences, and that this status of the conditional
applies even to declarative statements. "This is a
circle," means that, if one were to look at it from a
forty-five degree angle, it would appear elliptical. In
the case of ethical statements, however, so Carnap main-
2
Note: Charles L. Stevenson’s effort, Ethics and
Language, is a valiant attempt to put meat back on the
bones of ethical theory. It also should be noted that in
the introductions to Alfred J. Ayer's first and second
editions of Language, Truth, and Logic, a marked change in
attitude is apparent. For a critical evaluation of both,
10
.-tained, we can deduce no propositions about future exper
iences. Ethical statements, therefore, are not condi
tional (factual) and, not being conditional, they are
also not cognitively measurable.
The most comprehensive and significant analysis of
the current emotivist's attitude is presented, however, by
Charles L. Stevenson. Here the core of the problem of
moral authority is most clearly emphasized. The modifica
tion of ethical discourse here leads to a subtler analysis
of the noncognitive elements in ethical experience.
Stevenson feels the weight of the problem, as Ayer and
Carnap apparently do 'not; and he seeks to answer the ques
tion as to how ethical disputes may be settled. Stevenson
agrees with Ayer and Carnap in maintaining that to treat
an ethical judgment as a form of knowledge is an error,
but he maintains that, nevertheless, there is a sense in
which emotive phrases do have meaning. To apprehend this
see William H. Werkmeister, Theories of Ethics (Lincoln,
1961), Chapters I and II.
11
meaning it is necessary to make a distinction between what
Stevenson calls first-order and second-order disposi
tions (Stevenson, Ethics and Language, pp. 60 f.). The
precise meaning of first- and second-order dispositions
is much too involved to concern us here. The classifica
tion, however, meets the requirements of C. D. Broad's
second criterion of the natural property of meaning.
Stevenson, having met this requirement, feels free to
attach meaning to ethical terms, and the basic intention
i
of his book is (l) to "clarify" this meaning, and (2) to
"characterize the general methods by which ethical judg
ments can be proved or supported" (Ethics and Language,
p . 1).
It is Stevenson's second concern which leads directly
to the problem of moral authority, for the methods by
which he feels ethical judgments may be "proved or
supported" tend to favor one system of analysis and dis
favor another. That is to say, in pursuing his task,
Stevenson is committing himself at least to implicit, if
not to explicit normative assumptions (even though these
assumptions are behavioristic in tone).
Generally speaking, the basis of moral authority for
12
the emotivist, is located in the subject, i.e., it is lo
cated in the individual and in his conditioned attitudes.
The authority for moral claims is thus completely atomis
tic, in both a broad and a narrower sense. This is so be
cause the basis for the "ought" is the impulsive urges in
the individual. Hence it is at least theoretically pos
sible to find as many authorities1 claims for morals as
there are human beings. It must be pointed out, however,
that it is also possible for human beings to unite into
nations, religious groups, and other moral organizations,
and so to collectivize moral opinion. This usually occurs
on major issues only and says nothing as to one's obliga
tion to unite with others. But It is important as
involving the broader sense of "atomists." In most de
cisions, however, It.is the attitude of the speaker that
prescribes the value which is to be attached to moral
questions.
This atomistic declaration of moral authority has the
effect of emptying the whole concept of authority of any
meaning. The method, thus, tends to become--in the words
13
of H. J. Paton^— a linguistic veto of the whole question.
II
If the question of moral authority is going to have
significancej ways must he sought to present some common
level of order and authority. Aristotle, Hume, and
Bentham (among others), had this common order of morality
in mind and agreed that, in some sense, the basis for
morality was to be found in experience-even though they
differed as to what this might mean. Hume and Bentham
further argued that, when men talk about morality, much of
what they say is nonsense, and that, if morality is to be'
defended at all, man must link his moral conclusions to
principles which are Immanent in human experience, not to
principles of metaphysics. This position has usually
yielded some form of "naturalism."
An example of this naturalism is David Hume's opti-
4
mlstic ethical system, based partially on psychology.
■ ^The Modern Predicament (London, 1955)? P. ^05.
^It should be noted that Hume's system of ethics is
certainly more than a mere psychology, as Is demonstrated
in Chapter VI.
14
He argued that:
It is evident, that all the sciences have a
relation, greater or less, to human nature....
Even Mathematics, Natural Philosophy, and Natural
Religion are in some measure dependent on the
science of man; since they lie under the cognisance
of men, and are judged of by their powers and
faculties.... And as the science of man is the
only solid foundation for the other sciences,
so, the only solid foundation we can give to
this science itself must be laid on experience
and observation. It is no astonishing reflection
to consider, that the application of experimental
philosophy to moral subjects should come after that
to the natural, at the distance of above a whole
century, since we find in fact, that there was
about the same interval betwixt the origins of
these sciences; and that, reckoning from Thales
to Socrates, the space of time is nearly equal to
that betwixt my Lord Bacon and some later
philosophers (Locke, Shaftesbury, Mandeville,
Hutchinson, Butler [his note] ), In England who
have begun to put the science of man on a new
footing.^
Bentham sought to demonstrate the operational method to
which Hume had alluded, and felt that he had come as near
to its description as possible in the principle of utility..
According to the utilitarian's approach, utility is the
basis of morality, not because this principle can be veri
fied by some law— for no law can be demonstrated which
would prove that all men everywhere, at all times, must
{ = .
A Treatise of Human Nature, I (London, 1951)* 258.
15
seek their own happiness--but rather, because it appears
that all men in practice do seek, most of the time, their
own well being. Hence, ethics should be considered as
operational. Utilitarianism reduces the importance of
the "ought.”
Experience at the utilitarian level does not limit
itself to sensory observation free from subjective feeling.
Peelings, according to Hume, are the basis of experience
and thus must be brought to bear on our interpretations of
experience. Introspection, then, becomes the modus
operandi for any analysis of ethical experience.
Modern introspectionism is usually defined in terms
of an "affective” theory of empirical ethics; however,
many subsequent empiricists, e.g., R. B. Perry and John
Dewey, believe that any introspectional theory is too
vague to be useful in any analysis of empirical ethics.
They have adopted instead an interpretation described in
terms of behaviorism, constituted by such words as "drives,"
"needs," and the like, which has usually been described as
a "conative" theory.
It should be observed that if naturalism is some type
of biological reductionism, its assertions are merely
16
discursive. Under this circumstance, questions concerning
an imperative are hardly germane. But, instead of becom
ing merely a reductionism, ethical naturalism seeks to
maintain two major distinctions: It maintains that (a)
experiences of nature are a self-contained system operating
according to immanental laws, without consideration of
principles which would be classified as supranatural; and
that (b) this system contains a dynamic quality in which
higher structures have developed from lower ones. Of
utmost importance in ethical naturalism are two implicit
"mysteries," which become most troublesome where the ques
tion of moral authority arises: (l) the basis of
existence; and (2) the cause of emergence. The problem of
introducing the imperative and at the same time giving an
adequate biological explanation becomes the Herculean task
of naturalism. Briefly stated, the who or what which
constitutes the prescriptive force in naturalism is the
dynamic society in its empirical context. The needs of
such a society spring up from the individuals' desires for
ego preservations in life-involvements, which are always
understood as goal fulfillments within a social context.
In other words, the moral ought is grounded in the will of
17
society as long as that society acts in the best interests
of man— man in the universal sense, man whose well-being
is to be defended within a psycho-physical context. The
contented man within the happy society--that is the
eudaemoniacal utopia.
Ill
Existence and emergence, the major mysteries for
naturalism, are the basic points of attack of intuitional
ethics. This is typified in G. E. Moore's Principia
Ethica, by his celebrated "naturalistic fallacy" argument,
according to which any attempt to define the good (and in
this instance the "moral good") in terms of a property
other than the "good" itself is a fallacy. Naturalism,
according to Moore, errs in its effort to attempt to get
"behind" the term "good" to some natural property. This
naturalistic methodology, he maintains, is completely
wrong because it surreptitiously substitutes one thing for
another. A natural property is to be defined strictly as
what it is; no attempt of a sub-description will avail.
Natural properties are denotatively known--"yellow,"
"blue," "soft," "round," "bitter," "felt." All are what
18
they are, and that Is the end of It. Yellow is yellow,
not soft or bitter. Similarly, good is good, not yellow,
and is remains is, not ought.
While Moore nowhere states in the Principla that the
proposition, "this is good," is a self-evident axiom which
g
is incapable of proof or disproof, this is apparently
what he maintains.
Intuitionism, however, can relate either to the "good"
or the "ought." So far we have been concerned with the
question of the "good." In the content of this disserta
tion, however, the basic question is that of the "ought"
of the moral imperative. The intuitionist's position re
garding the "ought" is in current ethical theory perhaps
7 ft
best represented by the early A. C. Ewing' and W. D. Ross.
According to Ewing, moral obligation is unanalyzable; it
^G. E. Moore, Principla Ethica (Cambridge, 1922),
p. 15. A critical evaluation in Werkmeister, Theories of
Ethics, Chapter VII.
^A. C. Ewing, The Definition of the Good (New York,
19^7)j p. 215. Professor Ewing, however, has had some
second thoughts on this question. See Second Thoughts in
Moral Philosophy (New York, 1959).
Q
W. D. Ross, The Right and the Good (Oxford, 1930),
p. 176. Werkmeister, Chapter IX.
19
is simply the given in moral experience. Obligation is
other than a mere fitting ethical experience, as Kant's
categorical imperative is other than the hypothetical impe3>
ative. In ethical judgments, a type of peculiar compulsion
is exerted upon people, and no reference to natural pro
perties can account for this.^
W. D. Ross's notion is closely allied to Kant's. He
draws a clear distinction between the right, the "ought,"
and the good, and holds that any discussion of the right
involves us in the prima facie recognition, by intuition,
of what the right is.
In s\om, the basis for moral authority for intuition-
ism is as follows: (a) we intuite directly the quality
of goodness or of rightness; and (b) our intuitions are the
only legitimate way of assuring us of the truth of moral
propositions. The whole of morality thus centers in
a priori intuitions and these intuitions, common to men,
alone carry whatever normative force ethical terms may
possess.
%wing, Definition, pp. 132-135.
20
IV
What is at stake in these modern ethical interpreta
tions is the question of whether or not moral obligation
can really be defined in an age which sees in science the
model of all cognitive endeavor- Although we shall not
pursue this question any further, one analysis of obliga
tion and of the nature of law will, at least indirectly,
touch upon it as a most important issue.
Having thus far referred briefly to emotivism,
naturalism, and intuitionism in ethics, I now hope to show
basic parallelisms in the corresponding theories of law,
and to suggest some of the criticisms and advantages
pertaining to each.
CHAPTER II
EMOTIVISM AND THE FOUNDATION
OF JURISPRUDENCE
I
Critics of emotive ethical theory frequently voice
the opinion that the emotivist actually does not take
questions concerning values very seriously andj hence^ has
made no significant contribution to ethical theory. And
it is true that many emotivists have traditionally been
iconoclastic or extremist. This negativeor reduction-
istiCj attitude is clearly present in Rudolf Carnap's
statement to the effect that:
The nontheoretical character of metaphysics
f value judgments ] would not be in itself a
defect; all the arts have this non-theoretical
character without losing their high value for
personal as well as for social life. The
danger lies in the deceptive character of meta
physics; it gives illustion of knowledge without
actually giving any knowledge. That is why we
reject it.-1 -
•^Philosophy and Logical Syntax, p. 31.
21
22
However, what is true in the case of Carnap, is not
true in the case of Charles L. Stevenson, who writes in
Ethics and Language;
The present work seeks to give full attention- to
ethical methodology, emphasizing the interplay
between emotive and descriptive meaning, dispelling
any impression that the moralist must he irrational
or dogmatic, and indicating the general circum
stances under which etnical arguments can he resolved
by scientific means. (p. 268)
It appears, therefore, that there is some latitude of
opinion even within the emotivist school. And in much
the same fashion, modern juristic theories have their di
vergencies, even within positive legal theory. For
example, John Austin, the nineteenth century jurist, re
presents historically one form of positivism, and
H. L. A. Hart, Glanville Williams, Alf Ross, represent
others. Although Austin’s work marked the beginnings of
2
positivism in law, his influence still is enormous.
Austin's method was to glorify empiricism as the procedure
of law. He conceived law as an autonomous science which
consists of discursive definitions of what actually is the
2
The Province of Jurisprudence Determined and the Uses
of the" Study of'Jurisprudence (New York, 195*0 «
case. The study of law., therefore, is the study of the
actual rules in operation in a given society. Since
Austin's time, and largely under his influence, legal
education in the Anglo-American tradition has been essen
tially restricted to the study of institutions, statutes,
codes, and decisions found in the books in law school
libraries. The law was assumed to have no ramifications.
Historically, Austin's conception of law has been referred
to as "positive law" as distinguished from "living law,"
which consists, more or less, of the mores operating in a
given society. One need only study the positive law, said
Austin, to be able to make correct judicial decisions.
Ethics, in particular, is foreign to the judge's decisions
for his duty is to accept .the ethical content already
built into the law and to divorce himself from his own
personal ethical attitudes.
Whatever ethical content there is in law is put there
through the collective will of the private citizens who
express themselves through legislation. The basis of this
ethic is intrinsically subjective and particularistic. It
Is strikingly similar to the thought and method of a David
Hume or a William James. The "good" is the pooling of
24
private interest. Indeed, as far as Austin himself is
concerned, his approbative conception of ethics is clearly
expressed in the following passage from Hume:
The hypothesis which we embrace is plain. It
maintains that morality is determined by sentiment.
It defines virtue to be whatever mental action or
quality gives to a spectator the pleasing sentiment
of approbation; and vice the contrary.3
Austin also agrees with Thomas Hobbes on the necessity
of a sovereign power to establish the laws and to provide
them with‘their only possible sanctions.
Morality, then, is based upon the passions or the
sentiment of individuals and should not be construed as
rooted in some rational principle. The laws, however,
once they are defined within the State, are understood to
be cognitive. But the Hobbesian principle of force is
essential to their maintenance because, ultimately, no
other appeal to authority is possible. If the law seeks
to transcend its positive order in an attempt to establish
normative sanctions, it destroys its proper function as
law, and becomes mere caprice.
^Enquiries Concerning the Human Understanding and
Concerning the Principles of Morals, ed. L. A. Selby-Bigge
(Oxford, 1902) , p. 289.
25
It is apparent that the position of John Austin
represents an early modern attempt to construct an imma-
nental legal system. His influence in this respect is
beyond question. The success or failure of his method,
is, however, a different matter.
II
The emphasis placed by John Austin and the logical
empiricists upon the logical analysis of what is verifiable
and what nonverifiable, what is cognitive and what non-
cognitive, is underscored today by a group of British
philosophers; but it is underscored with notable modifica
tions. These modifications are probably due to the
influence of two men--G.,E. Moore whose approach was
through common sense, and Ludwig Wittgenstein, particularly
A
'after his break with the Vienna Circle. Of the philoso
phers influenced by Moore and Wittgenstein, the following
may particularly be named: Stuart Hampshire, Isaiah
Berlin, Gilbert Ryle, Antony Flew, Margaret Macdonald,
' 4
Note for example the latter sections of the Tractatus
Logico-Philosophicus (1922) and his later works, which he
sometimes refers to as "Therapeutic Positivism."
26
R. M. Hare, Stephen Toulmin, H. L. A. Hart, and Glanville
Williams.^ Of these writers, Hart and Williams are speci
fically interested in legal puzzles.
On the whole, Hart is willing to assign cognition a
more important role in ethics and in law than the logical
analysts were previously willing to do.^ According to
his theory, the statements which we use in any legal system
that involves the "rights" of men should be classified as
ascriptive and should be distinguished■from descriptive
sentences. Sentences such as, "I did it," "You did it,"
"He did it," are primarily utterances which attribute
liability by making accusations or ascribing responsibility.
The traditional philosopher would say, "He chose to strike
her." The typical modern analyst would insist that the
^Stuart Hampshire, Spinoza (London, 1951). Isaiah
Berlin, The Hedgehog and the Fox (New York, 1953). Gilbert
Ryle, Dilemmas (Cambridge, 195^7; The Concept of Mind
(London^ 19^-9) • Antony Flew, ed, Essays on Logic and
Language (Oxford, 1951). Margaret Macdonald, Philosophical
Analysis, ed. Max Black (Ithaca, 1950). R. M. Hare, The
Language of Morals (Oxford, 1952). Stephen Toulmin, The
Uses of Argument (Cambridge, 1958).
^H. L. A. Hart, "The Ascription of Responsibility and
Rights," Essays on Logic and Language, pp. 145 ff.
only factual Information conveyed in the preceding events
was the fact that "His body moved in violent contact with
another body." The traditional* metaphysically inclined
philosopher* Hart tells us*- would define the action as a
combination of physical and mentalistic events; whereas the
logical positivist insists upon regarding it as a series
of descriptive categorical or hypothetical sentences* free
of terms which intend to assert demonstrable facts but
actually do not* because they are "mentalistic" and un
observable ,
The basic mistake* continues Hart* of both the tradi
tional and the analytical philosophers* is that they assume
that* fundamentally* ascriptive sentences are purely de- -
scriptive. An ascriptive sentence* however* is more than
a merely descriptive one. "He hit her" ascribes responsi
bility in some sense. This responsibility is clearly seen
in the reply of the one who did the hitting: "Yes* I did."
Although he may add that it was accidental* done by
mistake, done in self-defense* done under great provoca
tion* done because of a compulsion neurosis* or whatever.
What is important here is that we see the distinction
between these two types of sentences. And the nature of
28
the two types of sentences makes it clear that Hart's in
terpretation introduces a cognitive element. It is appar
ent that he is moving away from a strictly positivistic
construction--a construction which constantly makes a radi
cal distinction between scientific statements as cognitive
and moral "statements" as mere ejaculations. The legal
sentences, according to Hart, carry within them an ascrip
tive element which implies responsibility for past action,
or an obligation to act in a certain way in the future,
and, in this sense, they are cognitive. Combined with this
cognitive meaning is a quasi-imperative force of legal
sentences. However, the basis for this force is usually
ignored, or, at best, some type of crypto-intuitionism is
assumed. We may, nevertheless, draw from Hart's comments
the conclusion that the younger analysts wish to escape
the "anything goes" result of a purely, atomistic ethic.
Ill
Glanville Williams, even more than Hart, introduces
7
the modern British analytical approach into law. He, too,
^Five articles on "Law and Language," Law Quarterly
Review, Vols. 61, 62, 19^5-19^6. Hereafter cited as
L. Q. R. All references are to these articles.
29
appears unwilling to support completely the noncognltive
conclusions of the emotivists.
Williams' Intention is (a) to explain the modern
theory of the function 6f language* and (b) to show the
importance of this theory for the lawyer and the student
of Jurisprudence (L. Q. R.j 61:T1)- His thesis is that
the study of the 1 1 Inexact" sciences demands concerted
semantic research; otherwise we shall not be able to avoid
flagrant hypostatizations. Jurisprudence, for example, is
ridden with many disputes which, upon examination, turn out
to be disputes, not about matters of fact or value judg
ment, but purely about words and their use (L. Q. R.,
61:72) .
Williams then introduces a propaedeutical method which
he feels should be used in the analysis of legal words.
His methodology follows the form presented in the work of
8
C. K. Ogden and I. A. Richards. Words by themselves are
empty; they are flatus vocus. Their importance lies in the
fact that they are "symbols" which make up a .part of the
Q
The Meaning of Meaning (New York, 1923).
"s±gn"-exper±ences of men. Signs may be described as
sensory experiences which convey meaning within a condi
tioned context. Symbols fall within the class of signs.
A symbol is a conventional sign. Words' themselves are a
class of symbols. The objects in the real world to which
the words or symbols refer are called "referents"
(L. Q. R,, 61:73). Between the referent and the nonrefer-
ential symbol is situated the man's mind. It is here
specifically that the trouble lies. For instance, do the
meanings of legal terms correspond with what, in fact, is
the case in the common experience of the real world; and
is there a common agreement of symbols among minds? Or is
this not the case? If there is no correspondence between
words and facts, the words are, in effect, reified; and
the reification of words is the most common of all semantic
9
errors.
A second error is to suppose that real distinctions
exist where only words are distinguished. This perplexity
9
~'L. Q.. R. Williams cites Jacob's gain of the birth
right from Esau by sheer deception (Genesis 27:36-38).
Also the Fidei Defensor given to Henry VIII in 1521 which
Elizabeth II carries today despite the efforts of many
popes.
31
arises when one uses words to make distinctions in the
abstract. The danger of the process is, of course, that
hypostatized words may become "phantoms due to the refrac
tive power of the linguistic medium" (L. Q,. R., 61:83*
citing Ogden and Richards). The theoretician of law,
keeping the pitfalls of language in mind, must therefore
strive to apprehend lav/ as it actually is--as a collection
of symbols capable of evoking ideas and emotions, together
with the ideas and emotions so evoked. We need not ask
whether law is primarily symbol, or primarily idea, or
primarily emotion; sometimes one of these aspects may be
predominant, but, as a rule, all three are inseparably
connected (L. Q. R., 6l:86).
According to Williams, therefore, the "ought" in
its legal meaning is not to be defined scientifically.
Its ground is essentially emotive; and this emotive ground
determines usage in law (L. Q. R., 61:385). To be sure,
lawyers have the tendency to dress up their imperative
statements as though they were factual, but we must not be
deceived. All action is inspired ultimately by emotion
(L. Q. R,, 62:387).
32
However, when Williams uses the word "emotion,1 1 it is
to be taken in no pernicious sense, for emotion is an in
separable part of our mental make-up (L. Q. R., 62:389).
In fact, what makes life purposeful and valuable is its
emotional center. Emotions, however, must not be regarded
as irrational. They are normal responses to factual
situations. Irrationality enters in only when we fail to
see the difference between emotions and objective fact.
Once this distinction is clear, however, then we realize
also that referential statements are statements of facts,
whereas emotive statements are statements of approval or
disapproval, and are always value judgments. Rules of
law, according to Williams, are not referential statements;
they are ought or value judgments. "Every legal proposi
tion," he says, "is reducible in the last analysis to the
affirmation or denial of an 'ought'" (L. Q. R., 62:396).
In legal terminology this "ought" is a "duty" (i.e., a
hypostatized "ought") (L. Q. R., 62:396). The whole or the
pattern of law, therefore, consists of emotive or "ought"
statements (L. Q. R., 62:396). Although not every member
of the community may desire that this pattern be followed,
"some important members of the community (judges and other
33
law enforcement officers) either desire the pattern to be
followed or at least conduct themselves as though they do
desire it" (L. Q. R., 62:398).
It is obvious, however, from what has just been said,
that Glanville Williams is not a logical empiricist pure
and simple. For one thing, he finds the analytic method
inadequate when we deal with the question of the imperative
In law. Legal expressions are not meaningless, and the
positivist who claims that emotions are meaningless is
himself playing fast and loose with the very words he
seeks so arduously to define with precision (L. Q. R.,
62:405). According to Williams, however, it Is not the
emotive whim of a single individual but the collective
emotive desires of society (a social moral ethos) which
establishes the "ought" of law. The police force, thus,
has the ’ tight" to enforce the law because the society
collectively desires to have the law enforced. Society
provides the authority for the law; and it is a more
effective authority than any individual could be. But
It is also more elusive, less subject to empirical verifi
cation.
34
The question which comes to mind here is whether the
collective social emotions attach themselves to any
principle which goes beyond the emotive level or which
may give cause for common agreement in the emotions of a
given group of men. On this question Williams wavers.
He is in intellectual sympathy with the logical analysts,
but he is not prepared to make the radical distinction
between cognition and emotion which the analysts demand.
However, the next author to be considered takes a more
decisive step toward the division of cognition' and emdtion,
and therefore calls into clear perspective the underlying
issues.
IV
Professor Alf Ross, one of the most articulate writers
in the modern Scandinavian school of juristic realism,
has recognized clearly the vexing problem of attempting to
produce logical reasons for confirming a given social
10
imperative, and has. attempted to deal with it.
' * ' 0Most notable of his writings are: Theorie der
Rechtsquellen (Leipzig, 1929), Kritik der sogenannten
praktischen Erkenntnls (Leipzig"] 1933), Towards a
35
As with the philosophies of ordinary language, so
linguistic precision here is primary to the understanding
of law. Initially Ross distinguishes three types of lin
guistic utterances: Utterances of assertion (indicative
sentences), utterances of exclamation (interjections),
and directives (imperatives). Law is defined within the
third set; that is to say, it is defined as directive
(imperative) utterances. And valid law is one which is
felt to be socially binding because it serves as a scheme
for directing social action.'1 '1
According to Ross, jurisprudence has traditionally
been defined within an idealistic or a realistic context.
The former assumes the existence of two different "worlds":
The one, a world of reality apprehended through time and
space, and the other a world of "ideas or logic" which is
comprised of absolute norms which we apprehend immediately
Realistic Jurisprudence (Copenhagen, 1946), On Law and
Justice (Berkeley, 1959). It is the last of these from
which most of the following interpretation will be drawn.
■^Ross, On Law and Justice, pp. 18, 34. The law is
felt by the judge or legal authorities applying the law.
by reason, and which is thus a . priori (On Law and Justice,
p. 65). Realism, on the other hand, which Ross himself
represents, denies the a priori and, therefore, also all
metaphysical relations which, according to the idealistic
interpretations, are common to law. "Ideas of validity
a r e metaphysical constructions built on a false interpre
tation of the 'binding force1 experienced in the moral
consciousness" (p. 68), Ross writes. The true basis of
"validity" is to be instead the social effectiveness of
legal norms free from the so-called conscious moral demands
of the individual (p. 68).
According to this interpretation, however, all pre
scriptive assertions about the law are emotive. Thus, to
assert that a law is unjust is not to present a real argu
ment (p. 280), but to make an emotive statement. To speak
of the "rightness" of an act or a law is to use a concept
which is purely chimerical (pp. 297-298). The basis for
the "ought" in law is and remains irrational. It is best
described as the "interest" or "attitude" of an organism
(p. 300).
By attitude LRoss writes] I understand those
volitive and emotional phenomena of consciousness
37
which are the source (motive) of all conscious
activity. They are directed toward an object
that presents itself to the beholder...and they
occur as pairs, attraction-repulsion, desire-
aversion, approval-disapproval, love-hatred.
(Ross, p. 301)
What is involved here is that, depending on the context,
the same person or act may be designated by words with
different emotional loads, e.g., a person may be a noble
leader to one individual, while he is a dictator to
another; he may be heroic or reckless, a defender of
liberty, or one who upholds authority, righteous or rebel
lious, etc. (p. 302). But these are not the same terms.
Their definitions, and therefore, their cognitive contents,
are quite different— not only their emotional tone. Such
ambiguities make linguistic analysis absolutely essential
to our finding the true emotional attitudes of a group--
especially so since, at a higher level, these attitudes
fuse into comprehensive theories, into .political programs
and ideologies, and into religious systems and philosophies
of life. Moreover, at the other end of the scale, any
individual who, theoretically, is destitute of feeling or
emotion has no motivating force. The purely rational argu
ment, void of emotional force, and appealing only to facts
38
and logic, lacks the motivating appeal and, in itself,
never proves the "rightness" of an attitude which demands
place upon an emotive response. According to Ross, law is
not scientific in character, hut it is an expression of a
personal attitudinal reaction. It is a "jump" toward a
decision, made on the basis of mutually incommensurable
considerations. And since this Is the case, legal author
ity can never be presented as scientific authority but
only as counsel and recommendation (p. 337). There is
always the possibility that another person may act in a
way contrary to counsel given, because he has made the
"jump" in a different way. When this happens, it is im
possible to say that the individual has acted "wrongly"
(p. 338).
However, man's moral attitude is not completely a
matter of organic need,- it is also the product of social
learning in a social environment (p. 365). Here the moral
attitude, begins as a verbal appeal, and the individual
seeks to sustain it under the influence of persuasion,
e.g., as approved or disapproved. In time, this moral
indoctrination will condition the individual to a "moral
bending" which adds or detracts from his pleasure (p. 366).
39
Thus, under social pressure, the adult has built into
himself the moral "voice of the heart" (p. 356).
In an entirely different vein, Kant wrote:
Zwei Dinge erfiillen das Gemut mit immer neuer und
zunehmender Bewunderung und Ehrfurcht, je ofter
und anhaltender sich das Nachdenken damit beschaftigt:
der bestirnte Himmel uber mir und das moralische
Gesetz in mir.-1 -2
Although Ross respects this attitude, he considers it to
be empty of meaning and "merely metaphysical," and he rele
gates It to its proper position as psychic phenomenon.
"It is always impossible [Ross says] to prove the right
ness" of such attitudes.
If we should now ask, What, then, must be the "reason"
for obeying legal injunctions, the only answer possible is
one which resides in "practical consideration" (Ross,
p. 369)> i.e.* in the fulfillment of needs. Moral in
junctions not specifically connected with the pragmatic
needs of individuals in their societal living should
carry no force. "People shall be free to perform such acts
that do not concern others, regardless of whether others
consider them sinful" (p. 373).
■ I p
- Ross, On Law and Justice, p. 367. Citing Kritik der
praktischen Vernunft ■ (17887"]
40
Ross has thus developed a theory of law which attempts
to demonstrate forcefully that all law rests upon a non-
cognitive principle. But can it he said that he has solved
the question of moral authority and its relationship to
law?
Hans Kelsen has seen clearly the perplexity of the
issue with which Ross is here concerned, and he has sug
gested that we distinguish sharply between the theoreti
cal interpretation or science of law, and the law as it
13
prevails, or morality. The purity of science must be
preserved, but morality is in no sense to be considered a
scientific study. Moreover, a distinction must be made be
tween law and justice (G. T., p. 5)- The problem of law is
a problem of social technique in organization. Justice is
a moral matter (G. T., p. 5). Law, Kelsen writes, is an
order of human behavior, a system of rules (G. T., p. 3)
which obligates the individual to behave in a certain way
under certain circumstances; but justice is social happi
ness (G. T., p. 6). Since complete social happiness is
13
Hans Kelsen, General Theory of Law and State
(Cambridge, 1946), p. 5. Hereafter cited as G. T.
41
Impossible to achieve, we are forced to seek accuracy in
law completely detached from questions of justice.
The question of justice, after all, depends upon a
subjective value judgment, and cannot be answered in terms
of rational cognition (G. T., p. 6). This is so because
" a judgment of value is the statement by which something
is declared to be an end, an ultimate end which is not
in itself a means to a further end" (G. T., p. 7), and
questions of ultimate ends have no rational answer. All
judgments pertaining to ultimate ends are determined by
emotional factors (G. T., p. r j)} and justification of
emotional functions by rational ones proves impossible.
Justice, in sum, is an irrational ideal and however in-
dispensible it may be for the volition and action of men,
it is not subject to cognition (G. T., p. 13).
Kelsen, therefore, seeks to demonstrate the positive
order of society, i.e., its law. This alone is subject
to scientific investigation--provided it not be construed
as metaphysics (G. T., p. 13).
Ross admits to much sympathy with this radical divi
sion of law and morality, and maintains that it is only
with uneasiness that he opposes Kelsen; for, as it always
42
must be, the idea of purity of science is the cornerstone
of the professional ethic for the man of science (Ross,
p. 339). Yet Ross must oppose Kelsen. Not to do so is
either to empty law of all moral considerations or else
to accept Kelsen*s radical dualism, which is far more
impossible.
Having thus presented--if ever so briefly--some of
the emotivist views concerning the foundation of jurispru
dence, we must now evaluate them.
CHAPTER III
EMOTIVISM: A CRITICAL ANALYSIS
It is now possible to draw some general conclusions
concerning positivism, some in support of it and some in
opposition to' it.
Among the most significant points of criticism which
modern positivism has raised against other legal method
ologies are the following: (l) Law and morality should be
kept separate.1 (2) Much jurisprudence suffers because of
See: John Austin, The Province of Jurisprudence De
termined and the Uses of the Study of Jurisprudence.
Felix S.Cohen, Ethical Systems and Legal Ideas (Camden,
1933), Chapter I; "The Holmes-Cohen Correspondence,"
Journal of the History of Ideas, 9:3-52, January 1948.
John Dewey, "Austin's Theory of Sovereignty," Political
Science Quarterly, 9:31-52, March 1894. John Dickinson,
"The Problem of the Unprovided Case," University of Penn-
sylvania Law Review, 81:115-129, December 1932. Lon L.
Fuller, "Positivism and Fidelity to Law. A Reply to Pro
fessor Hart," Harvard Law Review, 71:630-672, February
1958. Raymond Jaffe, The Pragmatic Conception of Justice
(Berkeley, i960), Chapter I. G. W. Paton, A Textbook of
Jurisprudence, 2nd ed. (Oxford, 1951). John W. Salmond,
"The Theory of Judicial Precedents," Law Quarterly Review,
16, 1900. Julius Stone, The Province and Function of Law
(Sydney, 1946).
43
44
linguistic confusion (specifically as this relates to the
2
problem of meaning). (3) The basis of morality is
3
recognized as emotional. It should be pointed out, how
ever, that the third consideration affects the principle
of moral authority more significantly than does any other.
4
Let us consider each of the three points separately.
I
John Austin was the first of the moderns to make the
separation of law and morality, and to assert that law is
an autonomous science consisting of discursive definitions,
5
whereas morality is the sentiment of individuals (Hume).
Felix S. Cohen, "Transcendental Nonsense and the
Functional Approach," Columbia Law Review, 35:809-849*
June 1935.
3
Morris Cohen, Reason and Law (Glencoe, 1950)*
Chapter III. Jerome Frank, Law and the Modern Mind (New
York, 1936). Charles L. Stevenson, Ethics and Language.
H. L. A. Hart, "Positivism and the Separation of Law and
Morals," Harvard Law Review, 71:593-629, February 1958.
4
Hans Kelsen, it has been shown, presents one of the
more clearly defined statements for the separation of law
and morality. However, I have chosen not to include Kelsen
in this chapter, for I do not consider him to be essential
ly a positivist. The reasons, for my position will become
apparent in Chapter VII.
^See p. 13.
45
Commenting upon Austin's accomplishment, James Gray has
written:
The great gain in its fundamental conceptions which
jurisprudence made during the last century was the
recognition of the truth that the Law of a State...
is not an ideal, but something which actually
exists.... It is not that which ought to be, but
that which Is. To fix this definitely in the
jurisprudence of the Common Law, is the feat that
Austin accomplished.
One of the key issues from the time of Austin on, has
been the traditionally rigorous demand in positivism to
separate the legal principles from the-"ought" principles,
i.e., to separate law from justice. Justice, Alf Ross
writes, cannot be a legal-political yardstick or an ulti
mate criterion by which a law can be judged. To make the
assertion that a law is unjust, he continues, is only to
make an emotional outburst. No reference is possible to
any criterion of argumentation, and the ideology of
justice has no place in a reasonable discussion of the
7
value of law. Ross says that objectivity demands that
the judge dismiss esoteric wisdom of the Oriental Cadi or
Nature and Sources of the Law (New York, 1909).
^Ross, On Law and Justice, p. 280.
46
Homeric themistes, or its modern counterparty the "legal- .
goodness" of the "American people," or the "interests of
the proletariat," etc. Instead, law is to be regarded as
an abstract set of normative ideas which serve as a scheme
of interpretation for the phenomena of social order in
action. Legal norms are effectively followed because they
are felt to be socially binding through the efforts of the
8
judge or some other legal authority. Law has no more
validity than have the rules of chess. One does not ask
why the rules of chess are constituted as they are, they
just are. Although one does not involve himself emotional
ly with chess the way he does with law, the structure is
essentially the same.
The law is a set of rules which may be ascertained in
any society by merely consulting the codes of that society,
whereas justice Is an ethical consideration which Ross re
gards as completely subjective.
One need not search very far in philosophical litera
ture to find this position defended. Basic to it is the
Ross, p. 18.
9
influence of G. E. Moore. Although Moore's early in-
tuitionism is not acceptable to modern positivistic
thinkers., his attack upon naturalism (see his "naturalistic
fallacy" argument10) is considered devastating to the
opposition. Moore's effort was to lay the groundwork for
the modern British language philosophers, who remain con
tinually alert to the distinction between prescriptive and
descriptive statements. According to this position,
justice is an ethical term and, therefore, an ought term.
It resides in the emotions of the individual. For such a
term, no possible verification is attainable. It is non-
cognltive. Ross (and Kelsen also) is convinced that the
most common mistake of sociological jurisprudence pertains
to this issue of justice and the law, and that the major
failing of all the "natural law" theories, sociological or
otherwise, is the confusion of justice and law. Specifi
cally, the confusion of law and justice in sociological
law theory produces the following fallacies:
9
Frinc.ipia Ethica.
^Ewing, Second Thoughts in Moral Philosophy, pp. 79-
81. Note Charles L. Stevenson's use of this argument in
"The Emotive Meaning of Ethical Terms," Mind, 46:15, 1938.
48
(1) The theory assumes that the meaning of the nor
mative term "justice" can be analyzed without remainder
into non-normative factual characteristics, and that ethi
cal terms are ultimately to be defined by descriptive terms
alone. Also, according to this theory, statements of law
are essentially factual statements which seek to define
the meaning of justice. Although such statements appear
in the interjectional mode, they are in fact descriptive
statements.
(2) The theory assumes that the normative concept of
justice can be inferred, deductively or inductively, from
non-normative premises alone.11
Both assumptions involve fallacies, and upon them the
major attack of positivism is centered.
Let us now consider the positivists' criticism and
especially the charge of linguistic confusion and of the
neglect of the problem of meaning.
II
1
Ross, Hart, and Williams are in complete agreement
11See Moore, Principia Ethica, pp. 13-14, 18-20, 38-
39. Stevenson, Ethics and Language, Chapter I.
that one of the basic problems in modern jurisprudence is
one of linguistic confusion— a problem which could only be
obviated by a clear and decisive resolution of the ques
tions arising within the context of meanings, and of the
meaning of meaning. Ross writes that every linguistic
utterance has an expressive meaning, i.e., it is the ex
pression or symptom of something. By linguistic utterance
he means a conscious arrangement of language, oral or
written (Ross, On Law and Justice, p. 6). But, Ross con
tinues, in addition to their expressive meanings, some
terms also possess representative meanings, i.e., the
utterance "indicates," "symbolizes," or "represents," a
state of affairs (p. 7). From this dual aspect of meaning,
he draws the following conclusions: (l) Some utterances
have both expressive and representative meanings. For
example, if I should say, "When driving an automobile, it
is wise to keep to the right-hand side of the. road," the
representative element is, of course, to convey informa
tion about American driving habits. However, when speak
ing to a foreign driver, I may wish to convey not merely
a representative meaning, but an expressive meaning as
well. That is, if I .should be riding in the same car with
50
him, it is my hope that he will keep to the right-hand
side of the road for the safety of all concerned.
(2) Some utterances, Ross claims, have a purely express
ive meaning only: "Ouch,1 1 "Shut up," etc. These utter
ances symbolize nothing. They have no representative
meaning, but carry an expressive or intentional "load."
They express an experience, but represent nothing.
The distinction which Ross thus makes between repre
sentative and expressive or emotional meanings corresponds
directly with Stevenson's distinction between descriptive
12
and dynamic language. However, Ross continues, the re
presentative and emotional utterances are by no means
mutually exclusive. Some utterances may contain
"cognitive-representative" as well as "emotive-expressive"
meanings. For instance, the utterance, "She is an old
maid," states a fact but may also carry a pejorative over
tone. Ross concludes, therefore, that it is possible to
form a third type of linguistic utterance--one which he
calls "directive." Directive utterances have no represen-
* »
tational meaning but seek to exert influence. The legal
12
Stevenson, "The Emotive Meaning of Ethical Terms."
51
code of a society is such a linguistic type. It is not
written to impart theoretical truths hut to guide people,
and is, therefore, "directive" in nature.
Ross devotes much of his time trying to resolve the
confusion which arises around the "directive utterances."
On the one hand, he maintains that utterances may be .repre
sentative or expressive; and on this point he appears to be
in accord with Stevenson's distinction of descriptive and
•dynamic sentences. Rut,‘whereas Stevenson's next step is
to declare that descriptive sentences are scientific and
dynamic sentences are ethical, thus making ethical senten
ces emotive in meaning, Ross introduces "directive
13
meanings," which constitute a third type of sentence.
Ross thus refuses to make a sharp distinction between
emotive and scientific meanings, and seeks refuge in his
third type, the "directive meanings." Directive meanings
carry prescriptive overtones; and it is within this context
that legal sentences find their place. In a sense, the
13
At this point Kelsen is very close to Stevenson's
distinctions. The law is the order, of society; it is
scientific. Justice, however, is ethical and "emotive,"
and nonlegal.
52
directive utterance is emotive. It carries with it an
14
emotional "load." It expresses an experience but repre
sents nothing. Its emotional element cannot be separated
from the experience. In the sentence, "Keep to the right,"
we use the emotive element of a command to induce in the
hearer a given action. It is' this same emotional element
which gives the legal statement its prescriptive nature and
makes such a statement as "Keep to the right" a directive
15
rather than a descriptive one. But if legal sentences
are "tainted" with imperative overtones, as Ross, Hart, and
Williams have admitted, and if these imperative overtones
are emotional in nature, the question arises, what has been
gained by insisting on a severe separation of moral and
legal sentences?
Neither Ross, Hart, nor Williams sees clearly the Im
plication of dividing morality from law; but Kelsen does.
He is prepared to make a decisive break between the law and
14
Ross, On Law and Justice, p. J,
15
^We may add, parenthetically, that this third dis
tinction, . which Ross has introduced as "directive,"
H. L. A. Hart has labeled "ascriptive."
53
morality, regarding one as cognitive and scientific, the
other as noncognitive and emotional.
Hoss, Hart, and Williams insist upon the emotive
meaning of moral concepts. But they are' reluctant to claim
that laws are scientific descriptive sentences free from
emotional implication because they identify some imperative
quality with the law. Kelsen, on the other hand, never
mixes morality and jurisprudence. The problem now is to
discover why it is necessary for Ross and Hart to keep law
and morality separated and, at the same time, to understand
clearly how they propose to accomplish this.
The separation of the scientific or representational
utterances from the emotional-directive or legal utterances
is necessary, they maintain, because legal utterances are
attempts to be persuasive. As persuasive, they fall out -
side the order of scientific statements and become emotion
ally "loaded," and the effectiveness of law rests to some
degree upon this persuasive ideological power. The final
decision which is to be made concerning legal utterances is
always a "jump," a purely irrational act, i.e., the
"solution" emerges from the biological needs of the organ
ism (Ross, p. 355). In other words, it is possible to
54
trace the cognitive links in human motivation back just so
far. Finally, cognitive meanings melt into the autonomic
and central nervous system.
Plato's assumption that the philosopher-scientist
should make the law was based on the intellectualistic con
clusion that one could know what is legally just, because
such knowledge is merely a question of correct cognition.
The positivists hold that this Platonic interpretation is
erroneous. However, their rejection of cognitive ties
creates an ambiguity of the law which, upon occasion, even
positivists themselves find hard to justify.
Alf Ross's position appears at times to be so plural
istic as to make legal decisions practically impossible.
For at what level can the law be considered unequivocal?
When answering this question, Ross finds it necessary to
retreat to a principle which lies behind the law--a feel
ing, a "social psychological program," as he calls it
(Ross, p. 355). It is the "given," i.e., the cultural
tradition of the society, a cultural stimulus which is at
all times beyond cognition (p. 336).
Ross's "directive" utterances, therefore, contain the
cognitive element of the sciences, which is primarily
55
pragmatic (i.e., operationally defensible), and at the
same time, the noncognitive element of persuasion, which is
emotive. Hart also recognizes this duality when he writes:
There are therefore two dangers between which
insistence on this distinction [ascriptive phrases]
will help us steer; the danger that law and its
authority may be dissolved in man's conceptions of
what law ought to be and the danger that the exist
ing law may supplant morality as a final test of
conduct and so escape criticism.
But Hart handles these mixed terms ("directive" and
"ascriptive") in a fashion somewhat different from that of
Ross. Hart's ascriptive words carry with them an "ought."
Ross is not prepared to introduce such words as "ought,"
"good," "right," etc., because he is convinced that moral
questions have no cognitive relationship whatsoever and are
purely emotive. It is Hart's contention, however, that it
is these "ought" words which set-off ascriptive utterances
as legal statements and thus enable us not to confuse them
with other types of sentences (P. S. L. M., p. 37). But,
instead of giving priority to the irrational elements in
ascriptive words, Hart emphasizes the rational elements and
Hart, "Positivism and. the Separation of Law and
Morals." Hereafter cited as P. S. L. M.
56
warns us of the emotional aspects which take the form of
"ought" but, curiously enough, are not moral principles.
Let me explain more fully.
Let us suppose that the city issues a legal rule for
bidding one to take a vehicle into the public park. It is
clear that the rule forbids the entrance into the park by
automobiles. But the law is sufficiently ambiguous to
create some doubt as to its interpretation concerning such
things as bicycles, airplanes, etc. It is at this point
that the responsibility for interpretation falls upon the
judge. The law is basically made up of interpretations
which result from the ambiguity of legal rules. These le
gal interpretations made by judges, says Hart, are the
"problems of the penumbra" (P. S. L. M., p. 607). The
penumbra surrounds all legal questions, and it is com
pletely impossible to derive any cognitive logical deduc
tions from the legal decisions made by a judge. Deductive
reasoning cannot serve as a model for what judges do to
bring particular legal decisions under general rules.
Judges legislate by exercising a creative choice between
alternatives. We may say that social policies guide a
judge's choices and that he draws out interpretations of
57
rules which are latent within his nature. For instance,
what the Supreme Court of the United States understood to
be the spirit of the United States Constitution regarding
the rights and privileges of the American Negro has changed
drastically since the decision of 1871. Hart has called
this potentiality for change latent in the nature of the
judge, the "penumbra" of the law. However, and this is
really the point, it does not follow that, because the
judge "pulls up" from his nature attitudes which enable him
to interpret the law, we have a connection of law and mor
als; for to admit this penumbra of legal judgment to be
cognitively defensible would be to reintroduce the natural
istic fallacy. For the "pulled up" natural attitudes are
basically primordial and, hence, always emotive (F. S. L.
M., p. 613). We should consider instead that the word
"ought," or the imperative of law, merely reflects a stan
dard of law as held by a given judge. We can say to our
neighbor, "You ought not to lie." But a frustrated poison
er may say, "I ought to have given her a bigger dose." In
both of these cases we have an imperative "ought," says
Hart, i.e., a "feeling" of oughtness within the individual,
a feeling that the act should be performed. But we -do not
58
have a moral Injunction. In other words, one may feel a
sense of obligation to perform a certain act which falls
completely outside the limits of what are truly moral judg
ments. Ross contends that it is possible to produce a
mechanical decision with an imperative "ought" completely
free from moral considerations.
Thus far we have proceeded through the "positive lav;"
of Ross, Hart, and Williams; and, in a minor sense, we have
touched upon the thoughts of Kelsen and have sought to un
ravel the reason for particular interpretations. What may
we conclude? In the case of Kelsen, I think the issue is
clear. The law is scientific, morality is emotional; the
two have no logical relation one to the other. Is there a
moral imperative? Yes, answers Kelsen, but it is outside
the boundary of scientific law.
When we move from Kelsen to Ross and Hart, the issue
becomes more puzzling. Ross and Hart advocate the prin
ciple of positivism in law because law is a logically de
ductive system of rules within a given society. The law
seeks to be "scientific." However, it is, nonetheless,
tainted with an irrational element--an element which we may
describe as taking the form of an "ought." As a matter of
59
fact, it is this imperative which is the basis of legal
statements. But the imperative is not to be understood as
a moral principle but., rather, if I may use the term, as
an emotive "spark" which motivates the society toward de
sired ends. The pragmatic justifications which are given
as the reasons for law become the basis of cognition in the
systems of Ross and Hart. However, each of these authors
insists on the essentially amoral nature of these pragmatic
elements. What, then, is the relationship of law and
morality? The answer to this question does not appear to
be clear and precisely analyzab-le. At least two somewhat
obfuscated lines of thought may be distinguished. First,
law may be placed outside moral consideration merely at the
level of "law in operation" within a given society and,
hence, all emotive considerations, such as "obligation,"
may be dismissed as meaningless. Or, secondly, we may try
to take seriously the so-called emotive meaning of such
terms as "duty" and "right," and (much in the manner of
IT
G. E. Moore) we may accept some type of hidden or never
precisely defined intuition or pragmatism as the source
17pp. 146-148.
60
of moral assertions in the law.
Perhaps the confusion may be resolved if we see clear
ly the positivists' third criticism of other legal theo
ries, for it is this criticism which goes to the heart of
the moral issue. The question is, is morality basic
ally an emotional and therefore noncognitive response or is
it essentially cognitive?
Ill
When we say, ,!A11 drivers of vehicles in the United
States drive on the right side of the road," we may be mak
ing a descriptive or scientific statement, but we may also
be making a legal statement. If the latter is the case,
the statement connotes something more than a purely sci
entific statement because incipient within the legal state
ment is what Ross has called an emotional "load." This
emotional load is made explicit when we change the legal
statement to "Keep Right." This means you had better keep
right if you know what is good for you. Stated this
severely, the prescriptive "load" hidden within the legal
1 ft
statement, "Keep Right," is obvious.
l8
Note Hart's discussion in "Definition and Theory
61
Foremost in importance for positivistic jurisprudence
is the necessity to produce a system of rules which con
tains as much precision as possible. In order to secure
this precision the positivistic jurists insist upon sepa
rating law from morality. Questions of morality are basic
ally emotive and., as such, are quite beyond scientific or
cognitive demonstration. These theorists, holding that the
functioning of society demands a consistent ordering if it
is to operate properly, maintain that It is absolutely
necessary that legal statements not be involved in the am
biguities of irrationality.
It has been pointed out earlier that positive legal
philosophy has accepted the premise which G. E. Moore and
many others have rigidly Insisted upon, against the natur
alistic hypothesis, i.e., the impossibility of defining the
good in some meta-moral language. In other words, if
morality is in fact an emotive, noncognitive principle,
then we cannot mix law and morals. If, however, it could
be demonstrated that morality has some cognitive ground,
In Jurisprudence," Law Quarterly Review, 70:37-60, 1954.
62
the positivists* attack would be essentially ineffectual.
Let us consider the positivistic criticism more close
ly. First, sociological jurisprudence assumes that the
normative term "justice" can be analyzed without remainder
into non-normative factual characteristics, and that ulti
mately a term such as justice may be defined, as simply a
descriptive term. Legal statements are then essentially
factual statements which seek to define the meaning of jus
tice; and while they appear in the interjectional mode.,
they are in fact, descriptive statements. Secondly, socio
logical jurisprudence accepts the conclusion that normative
concepts of justice can be inferred, deductively or in-
19
ductively, from non-normative premises alone. However,
so the positivist points out, what the sociological jurists
fail to see is the fact that moral questions are- lost in a
maze of hopelessly interrelated variables beyond the possi-
20 ‘
bility of cognition. The "good reasons" which the cog-
nitivist uses to define justice as the cognitive property
19'
Note Jeremy Bentham, Theory of Legislation, trans„
from French of E. Dumont by Ch M. Atkinson (Oxford, 1914
PP. 2, 3, 31-32, 53 f. Also Jaffe, pp. 38-44.
20
Williams, "Law and Language," L. Q. R., 61:71-86.
63
are, by and large, so ambiguous as to be irrelevant. More
over, there is no common systematic structure on which all
cognitivists agree. From this criticism, the positivist
draws what appears to me to be the correct conclusion con
cerning sociological theory--the conclusion, namely, that
historically the inadequate assumptions as to the meaning
of normative terms has made it impossible to find a logic
common to all sociological theories. In other words, the
second principle--the principle, namely, that the cogniti
vists can never agree upon a common systematic structure--
has been amply demonstrated historically in the contribu
tions of Bentham, Mill, Sedgewick, Dewey, Perry, and
21
others. The confusion among these writers indicates
not only a formal error in logic concerning the analysis of
justice, but some radical epistemological errors as well.
Epistemologically, the starting point of legal positivism
and sociological jurisprudence are so different that some
explanation of this variance is required.
21
P. H. Nowell-Smith, Ethics (London, 195^-) > PP* 232-
233. Also Everett W. Hall, "The 'Proof' of Utility in Ben
tham and Mill," Ethics, 60:1-18, 19^9, and Richard H.
Popkins, "A Note on the 'Proof' of Utility in Mill,"
Ethics, 61:66-68, 1950.
64
For many philosophers, a common starting point in
epistemology is to presuppose a working dualism. This
dualism has taken the classical form of subject and object
or, better for our purposes, the relationship between the
objective world and conscious experience. Some philoso
phers have constructed metaphysical systems in a "real
istic" others in an "idealistic" manner. The positivists
are convinced that any solution is impossible when the pro
blem is presented in such a fashion as to create an epis-
temological dualism. The positivists insist, therefore,
that to introduce idealistic or realistic ways of facing
the problem is only to confuse the issue, never to resolve
it, ■
What is needed is to reject metaphysical philosophy
completely and to reconsider this puzzle as it really is.
22
The realism-idealism conflict is a pseudoproblem. Never
theless, no matter how intent positivism is upon withdraw
ing from metaphysical combat, the fact remains that,
22
Unfortunately, however, it is a fact that not all
positivists have been able to abandon the influences of
some forms of dualism, specifically the classical form
found in phenomenalism. For example, Rudolf Carnap, whom
Quine has referred to as that "Gothic metaphysician."
65
positivists generally have a metaphysic which is implicit
in their systems.
An example of the metaphysical interpretation of posi
tivism is apparent in the positivists' attitude toward the
problem of consciousness, i.e., what is consciousness or,
more importantly, is it at all? With reference to this
issue, both positivists and nonpositivists seem to draw up
on what Stevenson has referred to as one's own brand of
"homespun" psychologyEach side, therefore, finds it.
difficult to understand the significance of the epistemo-
logical interpretations of the other side. However, essen
tial to the positivists' "homespun"'psychology is the
assumption that there is no "consciousness"--"consciousnes^1
being one of those "vestigal organs" of nineteenth century
24
metaphysics. - That is to say, positivists are convinced
that J. B. Watson and others have shown conclusively that
such words as mind and consciousness have no demonstrative
reference to fact and should be abandoned. They are
neither scientifically useful nor metaphysically true. The
21
•^Charles L. Stevenson, The Language of Value, ed. R.
Lepley {New York, 1957)j P. 323.
24
e.g., W. Wundt, et al.
66
traditional realistic or idealistic interpretations con
tinually speak of cognition as though it were "something."
But, as the positivists maintain, cognition presupposes the
conscious experience and this experience entails the use of
terms which have lost their scientific significance.
What is needed, therefore, are terms which will ex-
elude metaphysically loaded concepts. Some of the positi
vists who find themselves concerned with questions of
consciousness, supply their own terms--terms which, they
feel, will allow them to escape from metaphysical innuendo,
25
e.g., attitudinal expressions, attitudinal designators,
26
or symptomatic or signalizing functions. But the ques
tion is, do such terms satisfy the demand created by the
problem?
Ross is in complete agreement with the positivistic
position that the metaphysical definitions of the tradi
tional philosophers are antiquated and entirely nonscien-
^^See Stevenson, Ethics and Language, and "The Emotive
Conception of Ethics and its Cognitive Implication,"
Philosophical Review, 59:291-304, July 1950.
Alf Ross, "On the Logical Nature of Propositions of
Value," Theoria, 11:172-210, 1945.
67
tific. Therefore what is needed are more adequate explana
tions of the facts as they are. What is required, Ross
contends, is a restating of the issues, not as a "realist"
or an "idealist" would state them, but in a scientific
sense. The question is, how will one be best able to de
scribe our experience, especially what is usually called
our "conscious" experience? More specifically yet, how
does one describe the object-subject relationship in our
experience? Begin with the objects in experience, Ross
recommends, and the subjective relationship will take care
of itself. Concerning the object, one should introduce in
to consideration principles of verification. If these
principles cannot sustain the objective status of the thing
27
then the "objects" should be branded "merely subjective."
But how will one be able to distinguish between sub
jective and objective experience? Ross proposes the fol
lowing definition:
That a quality sphere can be objectively ascribed
to objects (or certain groups of objects) means
that it is possible by immediate observation within
this sphere-to distinguish and identify two objects
27
Ross, "Logical.Nature," pp. 201-202.
68
which are identical in every other respect,
in such a way that the result coincides with a
distinction that can be established through a
wider experience, not possessed by the observer.
■(’ ’Logical Nature," p. 202)
That is to say, all problems of objectivity are formulated
as assertions of difference. This "differential verifica
tion," as Ross calls it, functions as follows: Two
objects, or what appear to be objects, are presented to an
observer. One object possesses a certain color, e.g., the
color green, the other does hot. In every other respect
the objects are identical. The question is, how does one
fully substantiate the apparent difference In the objects?
Ross's answer is, by applying the rule of differential
verification, or some wider test which will concur with
one's primary experience. For example, a different length
of light wave may be discovered, emanating from the two ob
jects. In other words, the objectivity does not reside in
the description of the qualities as such but in the in
variant relations which have the distinction of being
based upon a wider experience. Ross finds no possibility
of applying the rule of differential verification to such
terms as "consciousness," "cognition" and "value," There
fore, he finds no need to perpetuate these metaphysical
"phantoms." Opponents of positivism have consistently
maintained that moral concepts, and, hence, legal concepts,
operate at the cognitive level of conscious experience.
If it is clear that such terms have no significant meaning,
then it is possible to discard them as unimportant. Since
Ross Is convinced that moral concepts are plainly meta
physical "phantoms" there is only an apparent relationship,
never a real one, between the law and morality. There ap
pears to be a relationship, because, words such as "mind"
and "moral," appear to have metaphysical significance; but
in fact, they do not. An example of Ross's attitude toward
these "phantoms" is in his discussion of values, which
supposedly must lie at the heart of all legal and moral
considerations ("Logical Nature").
Is it possible to verify value propositions in the
wider differential sense? Ross replies: No, for the fol
lowing reasons: (l) Value statements refer to subjective
experiences which have been standardized by the given
society, and.which yield no objective content whatsoever
("Logical Nature," p. 202); (2) the verification differen
tial cannot be applied, because the term "goodness," for
example, has no wider verification than that which it
70
already possesses in the original subjective feeling which
individuals have about itj (3) since value considerations
are not verifiable, it follows that they are without logi
cal meaning; they can be neither true nor false.
What, then, are statements about value? According to
Ross, they are best defined in a psychological manner as
signals or symptoms of certain attitudinal responses. The
commonly accepted notion that a normative assertion is a
cognitive act which is a description of a state of affairs
.and contains an inherent categorical demand, is a meta
physical confusion ("Logical Nature," p. 207). It is the
confusion of norms and facts. "If ’goodness' is defined as
an objective quality without relation to human aspiration,
ethics will merely be a theoretical description of the
surrounding world" (sociological jurisprudence) ("Logical
Nature," p. 207). "If 'goodness' Is defined as that which
is actually aspired to, ethics will be a description of
human aspiration" (intuitionalism) ("Logical Nature,"
p. 207). In neither case will the combination of sociolo
gical jurisprudence and intuitionism make sense.
In the former position (sociological jurisprudence),
the norm Invites one to align himself with the "true" order
71
of the universe, and thus to free himself from aberration
and/or frustration. In the latter position (intuitionism),
it is demanded of one to direct his will toward the intel
lectual law and to abandon the allure of nature's distor
tion of reason and propriety. Both positions are illusory,,
because they assume the possibility of metaphysical insight
in the world of science. Ross has learned well from Comte.
Finally, what is the difference between objective and
normative experience, respectively?
The decisive difference in principle between exper
ience and evaluation lies in the fact that, while
the sense-perceptions logically constitute the thing
(but are not caused by it), the attitude of evalua
tion is a behaviourist effect produced by the thing
(though it does constitute it). ("Logical Nature,"
P. 209)
It is thought by many, says Ross, that, in connection
with certain processes in the central nervous system, the
organism produces specific psychic elements, collectively
called consciousness, and that things act on the conscious
ness, producing certain sensations or evaluations. This is
false, because the classical description of consciousness
is illusory. In the external world there are no psychical
elements. I.e., there is no "consciousness of something."
For example, a tree, qua tree, forms no visual pattern in
72
the organism. The tree is rather solely the stimulus of
the nervous system which produces a phenomenon describable
in physiological terms. The psychical element of "tree-
ness" is not something which is ultimately given; it is
"composed" secondarily in the brain.
This means that the assumption that "phenomena of
consciousness" are found "in myself," which is
equivalent to the assumption that linked to certain
processes in one's own body there arise certain
specific psychical elements, is not something which
is immediately given, but is a theoretical con
struction made to explain certain observed connegg
tions between the sensation and one's own body.
We must remain fully and wholly within a language which
describes what is immediately given, and must divest our
selves of all "construct" interpretations, because they
have no relation whatsoever to objects in space and time
("Illusion," p. 193). "Constructional" languages must be
sharply distinguished from "data" languages ("Logical
Nature," p. 210). "Data" language is Ross's device to get
behind the phenomenal experience, i.e., behind the con
structional 'language, and to describe "things" as they
actually are. Consciousness is not the primordial datum,
p O
Alf Ross, "On the Illusion of Consciousness,"
Theoria, 7:191, 19^1.
73
because it is a synthetic construction; it is epiphenomenal
in character. (Whereas, apparently, such terms as
"neurons,” "dendrites," "synapse," are descriptions of
things as they really are.)
Ross concludes that any attempt to parallel the cog
nition involved in apprehending the object world with the
experience in the world of value will only prove to be
abortive, because value experience contains within itself
no second cognitive quality which would enable it to demon
strate in the slightest way the principle of differential
verification. That is, there is no second way of testing a
value as you would test a "thing" in the external world.
There can be no "probability verification," therefore we
must assume, Ross maintains, that a value experience ex
presses solely a behavioristic reaction of the organism,
predisposed by such conditionings as environment and up
bringing. Value attitudes (free from the phenomena of
consciousness) are properly called emotions. Ross's obser
vations concerning consciousness and values indicate an
attitude which is common to most positivists. That is to
say, although most positivists claim to operate within the
realm of agnosticism concerning metaphysical questions,
74
they are nonetheless Identified closely with behavioristic
conclusions. And they consistently bring metaphysical in
terpretations in by the back door which they have summarily
dismissed in explicit statements.
It seems evident to me that the assertions on value
of the last few paragraphs are impossibly reductionistic.
Ross has presented a type of extreme behaviorism which de
nies the existence of consciousness on the ground that it
is a "phenomenalistic construct" and therefore must even
tually be reduced to bodily behavior. But this position is
logically fallacious. C. I. Lewis analyzes this confusion
in his Mind and the World-Order.
The analysis of any immediately presented X
must always interpret this X [consciousness] in
terms of its constant relations to other things--
to Y and Z. Such end-terms of analysis--Y and Z--
will not in general be temporal or spatial
constituents of X, but may be anything which bears
a constant correlation with it. ^
It would be as If one should deny the existence of
colors because, for purposes of exact investigation, the
colors must be defined as frequencies of vibratory
motion (Lev/is, p. 6).
20,
(New York, 1929), p. 5.
75
In general terms, If. such analysis concludes by
' stating ! I X is a certain kind of Y-Z complex,
hence X does not exist as a distinct reality,"
the error lies in overlooking a general charac
teristic of logical analysis— that it does not
discover the "substance" or cosmic constituents
of the phenomenon whose nature is analyzed, but
only the constant context of experience in which
it will be found. So far, then, as the diver
gence of psychological theories, from behaviorism
which interprets mind in terms of physical behavior
to theories of the subconscious which assimilate
much of physiological activity to mind, represents
no dispute about experimental fact only disparity
of definition and methodological criteria,
psychology and metaphysics have a common ground.
The delineation of the fundamental concepts of
"mind" and "mental" Is a truly philosophic enterprise.
(Lewis, pp. 5-6)
However, not only does Professor Ross commit a logical
fallacy, but his analysis of experience appears to be in
error. Specifically, his sharp distinction between the
factual objective world and the valuational one seems to be
a mistake. Ross insists that "objective experience" is a
complex of stimulus-response data. This new data complex
is to be placed at the same logical level with the original
data and, hence, confirm the original data. But, he goes
on, this process of differential verification is not possi
ble at the valuational level because value responses are
conditioned-responses in the most pristine Pavlovian sense,
i.e., merely emotional outbursts beyond any verification.
76
Ross's extreme Pavlovian stand creates an impossible bifur
cation, one which, I am convinced, cannot be corroborated
by experience. I shall now attempt to show that this is
the case.
Refutation of Ross's position rests upon the ability
to demonstrate, at least in some degree, the cognitive
principle within valuational decisions.
When A says, "This is good," and B says, "No, it is
bad," vie have what Stevenson calls suggestion and counter
suggestion, wholly perpetuated by A's and B's desired
30
emotional ends.
But is it not obvious that individuals, once they are
convinced that there is an attempt to propagandize them,
become resistive? Suggestions, for example, from a pro
ducer of soap to buy his product must at least appear to
have reasons for an individual 1s doing so or else his
claims are quickly rejected. This is not to deny the fact
that much of what is said concerning ethical judgments is
tainted with emotional .overtonesj but what I would insist
30
Charles L. Stevenson, "Brandt's Questions About Emo
tive Ethics," The Philosophical Review, 59:528-53^ October
1950. Ethics and Language, Chapter I.
upon is that there is a definite cognitive element in all
value statements. Individuals can express approval or dis
approval of an ethical judgment in the same way as they
agree upon so-called "scientific statements." A statement X
is relevant to an ethical statement Y if, and only if, the
truth of X tends to confirm or disconfirm Y. It is not the
case, then, that only "factual" statements have the possi
bility of differential verification. Let us suppose that X
is hauled before a judge charged with a stopping violation
committed on a busy thoroughfare and, in defense of him
self, pleads that it would be unjust to find him guilty
because he had seen the Mayor of the city committing exact
ly the same act. The judge, however, is unmoved by this
plea, stating that it is irrelevant, and that the court is
being completely just in fining X for an unlawful act.
In this'instance, the violator was seeking cognitive
principles which he could -present to the judge that would
have some relevance, no matter how feeble, to his predica
ment. The judge, on the other hand, ruled these reasons
irrelevant. In both cases an appeal was made to some type
of "fact" which would sustain the principle of justice.
And the’judge's final decision was based upon his under
standing that the Mayor's action in no way affected the
ultimate "reason" for the penalty. The stopping of one's:
automobile on a busy thoroughfare could cause injury to
individuals traversing this thoroughfare, and the fact that
the Mayor did this in no way excuses X from doing an act
which might have harmful effects. What appears to be the
case is that both, the judge and the violator, have made
value judgments; both are seeking to demonstrate the rele
vancy of their judgments to a set of value claims. The
claims of X and the legal demands of the judge prove to be
''ethically" relevant.
To admit that value assertions are freighted with emo
tive meanings is not tq deny the element of confirmation
which must reside in all value assertions. No attitude can
be merely emotive; if the cognitive aspects were taken from
the attitude, it would melt into an unconditioned general
emotional state. Therefore, in a very significant sense,
ethical judgments do depend upon valuational analyses which
can be differentially verified. The judge and X must both
ask themselves, what, in this case, is the primary inten
tion of the law? If I violate this lav;, am I actually
running contrary to the nature of the ultimate Intention
79
behind this law? To ask this question is to bring a
second differentially verified principle to the law in
order to show in a cognitive sense the ’ ’value" of this par
ticular law.^
Let me now suggest another criticism. The analysts
are fond of pointing out the emotional "load" which words
have, thereby showing the inability to draw up any cogni
tive patterns from such words. Ross was cited earlier as
having played the game of double thinking. He suggested
the dual nature of such words as hero-dictator, liberty-
rebelli-on, etc. We are told that these words actually
carry the same meaning, and the difference between them is
not cognitive but emotional. X cannot agree with this con
clusion. In a superficial way, the words referred to may
parallel one another. However, in these words there is an
implicit element which suggests a quite different meaning.
3 See: Henry David Aiken, "Emotive 'Meanings1 and
Ethical Terms," The Journal of Philosophy, 41:456-470,
July 1944; "The Levels of Moral Discourse," Ethics, 62:235-
247, 1952. R. B. Brandt, "The Emotive Theory of Ethics,"
The Philosophical Review, 59:305-318, July 1950. Robert
Hartmann, Stephen C. Pepper, and R. B. Brandt in Ray Lepley
ed, The Language of Value. Stephen C. Pepper and Philip B.
Rice in Ray Lepley, ed.. Value: A Cooperative Inquiry
(New York, 1949).
80
Even such interjections as "Ouch," for example, I contend
contain cognitive meanings. "Ouch," for example, conveys
the cognitive concept of pain to a hearer, plus the fact
that it actually becomes a learned conditioned expression
for pain on the part of the individual who has uttered
Finally, is it not also the case that many individuals
may have emotional attitudes about certain values which
move contrary to their reasoning concerning these values?
And is it not also true that, at least on some occasions,
the cognitive claims which have been attached to these
values actually motivate the individual? For example,
there seem to be situations in which people can say that a
principle is just or unjust, and at the same time be emo
tionally in disagreement with it. Southerners, perhaps,
demonstrate this fact, when they resist years of emotional
conditioning toward the Negro people because they have
been, so to speak, "intellectually persuaded’ 1 of the right
ness or wrongness of a given value judgment. Here we see
represented real emotional conflict which, rather than
82 ■ ■
Brandt, "The Emotive Theory of Ethics."
81
running parallel with value decisions, runs contrary to
them, and the value decisions seem to be maintained almost
on cognitive grounds alone.
I suggest, then, in conclusion that the emotivist con
ception is inadequate because, in actual fact, our exper
ience does not parallel this easy, bifurcating solution.
Law has emerged out of history as society's need for order
has developed. But man's laws are inextricably linked to
his conception of what is right, just, and good, and these
concepts are never merely emotive outbursts, but contain
cognitive status and lie at the center of the juridical
process. However, two important contributions do arise
from the emotivist hypothesis. (l) It is true that much
sociological jurisprudence suffers from shoddy linguistic
analysis which has often lead to the confirmation of over
simplified explanation of the moral "good;" and (2) histor
ically, the ultimate ground of value assertions has not
been adequately demonstrated in much of the sociological
law which has been presented. It does appear, however, as
C. E. Ayres writes, that the emotivist "movement is a,
twentieth century manifestation of the 'quest for certain
ty. ' The only puzzle Is why there should have been such a
82
resurgence of the age-old quest in an age of science and
33
why it should have taken this peculiar form." Stephen C.
Pepper has referred to emotivism as "the new way of the a
i i 34
priori, a modern adaptation of the ontological argument.
In other words, the emotivists have shown that a
scientifically warranted normative ethic is impossible; but
this is true only If the analysts' definitions of such
terms as "fact," "norm," "consciousness," and "knowledge,"
are granted. But, as Pepper points out, since the emoti
vist doctrines are established by volitional definitions,
they merely express the volitions of those who advance
them, and are themselves neither true nor false. Positi
vism begins with a conception of what the ultimate ground
of knowledge ought to be and what purpose scientific in
quiry ought to serve. As a result, it emerges with a
nonempirical conclusion concerning morality. It produces
33
"The Value Economy," in Lepley, Value: A Coopera
tive Inquiry, p. 49.
3^"0bservations in Value from an Analysis of a Simple
Appetition," in Lepley, Value: A Cooperative Inquiry,
p. 449.
a corresponding criterion of justification which blocks
any cognitive analysis in ethics and inhibits any. attempt
to link morals and jurisprudence.
CHAPTER IV
THE COMPLEXITY OF SOCIOLOGICAL JURISPRUDENCE
I
Sociological jurisprudence draws a crucial distinction
between that which John Austin and Hans Kelsen call
"positive law," and that which Eugen Ehrlich calls "living
law."^ "Positive law" is the law constructed by the soci
ety. Positive law thus takes the form of constitutions,
codes, statutes. It is manifestly based upon precepts of
2
the corpus juris civilis and of the corpus juris canonici.
By contrast, "living law" is the underlying inner order of
social behavior, e.g., the order of the family or of the
tribe.
F. S. C. Northrop offers the following definition of
^Grundlegung der Soziologie des Rechts (Munchen,
1913)3 English trans., Fundamental Principles of the Soci
ology of Law (Cambridge"^ 1922), p. 541. ' ~
p
Ehrlich, "Tatsache des Rechts," Grundlegung der Soz
iologie des Rechts.
84
85
sociological jurisprudence:
The thesis of sociological jurisprudence is that a
good norm for selecting the positive law to be used
by the judge in making his decision is to be found
by identifying it with the "inner order" of society,
its "living law."3
In other words, the true authority for law, the level at
which the judge should seek to authorize his decisions, is
to be based upon the will of the people within the social
order. What the law "ought" to do is basically that which
the society "is" doing; there is no higher court of appeal.
The judge must interpret the law in sympathy with the will
of the people, never arbitrarily from the position of his
own will. Austin and the positivists are the great build
ers of the Chinese wall around the law (that is, the great
wall of codes and statutes immutable and irrevocable). The
sociological jurists look upon themselves as the destroyers
of this esoteric wall; the weapons in the sociologists'
arsenal are the existential needs of the dynamic society.
The social jurist is searching for a "natural" law, that is,
a law, or an inherent order, in the world. This order may
3
The Complexity of Legal and Ethical Experience
(Boston, 1959)j P. 52. Hereafter cited as Complexity.
86
reflect the teleologieal will of the gods or it may reflect
the needs of the social man, but, in any event, it corres
ponds with the internal order of the world.
One of the earliest expressions of this natural law
spirit found in western thought occurs in the Stoic jurist,
Domitius Ulpianus. "Jus istud non human! generis pro prium
est, sed omnium animalium, quae in caelo, quae in terra,
quae in mari nascuntur" (Law is not peculiar to the human
species, but [is the law] of all living beings which are
born in the sky, on the earth, or in the sea.) An early
modern expression of social legal theory is Montesquieu's
De L1 esprit des lois (1748). "Les lois, dans la significa
tion la plus etendu, sont les rapports necessaires qui der-
ivent de la nature des chores." (Laws are the necessary
5
relations arising from the nature of things.) Montes
quieu's admission of a relational character of the law to
the world makes him most clearly a harbinger of social
4
Justinian's Digest, 1:3* cited in Carl J. Friedrich,
The Philosophy of Law in Historical Perspective (Chicago,
1958), p. 28.
5
Trans. Huntington Cairns in Law and the Social
Sciences (New York,. 1935)* P. 131*
87
theory in jurisprudence.
Finally, and without question, the most important
influence on modern sociological theory is the contribution
7
of Eugen Ehrlich. I have, however, chosen to analyze the
work of three American jural scholars. While it is quite
true that there are some distinct differences among these
scholars, their thoughts on jurisprudence are sufficiently
alike to allow us to classify them as sociological jurists.
I shall be concerned principally with Benjamin Cardozo,
Underhill Moore, and F. S. C. Northrop.
We may cite the following as particularly influential
in the historical development of sociological jurispru
dence. In Herbert Spencer's three-volume Principles.of
Sociology (New York, 1910), he calls jural law the "ghosts
of the past." Lester Ward, Dynamic Sociology (New York,
1883). William Graham Sumner, Folkways (Boston, 1906).
Also very important are Edward A. Westermarch, Origin and
Development of Moral Ideas (London, 1906); Leonard T.
Hobhouse, Morals in Evolution (London, 1906); Emile Durk-
heim, De La division du Travail Social (Paris, 1893) . > and
"Deu lois de l1evolution penale," Anne' Sociologique, IV
(1900). The influence of Durkheim is apparent in the work
of.the French jurist, Leon Duguit in L'etat, le droit
objectif, et loi positive (Fontemoing, 1901).
^Beitrage zur Theorie der Rechtsquellen (Tubingen,
1902), Grundlegung der Soziologie des Rechts, and Die
Juristische logik (Tubingen, 1918).
88
II
The sociological revolt in jurisprudence is primarily
a reaction against the classical Austinian tendency to
formulate law as a closed, self-contained system of jural
precepts. The social jurists maintain that a self-
contained system of law will become stagnate and ineffec
tual in a short time. These jurists agree that law is to
be understood as a social phenomenon in an ambient world;
that it has its roots in the legal traditions which, to a
large extent, are immersed in the cultural flow of the
community life, and that the full and complete intention of
the law is not reached until human ends in the communal
association are fulfilled.
Unlike the emotivists mentioned earlier, the socio
logical jurist combines the concept of justice with law;
he makes no significant distinction between the two princi
ples. Justice is not conceived as a transcendent meta
physical entity but as an extra-legal norm derived from the
social mores. But this does not necessarily mean that
sociological jurisprudence is advocating a relativity
theory of authority for the law. Sociological jurists
maintain the conviction that what "does" occur In society
89
is, in fact, what 1 1 ought" to occur1. It is true, of course,
that all social theory demands some modification and educa
tion of the people for the purpose of ascertaining what is
valuable and necessary. But, on the whole, social values
have proven themselves by trial and error and are sustained
by the fact that they are the most pragmatically signifi
cant elements. If these values were not pragmatically
significant, they would not have survived in the tradition
but would have been replaced by other more significant
O
values. However, that which constitutes the problem for
utilitarian philosophy is also the problem of sociological
jurisprudence: Somehow Heraclitus and Darwin must be dig
nified with normative claims.
Q
Note: Frank, Law and the Modern Mind; Friedrich,
The Philosophy of Law in Historical Perspective, Chapters
XI, XIX; Durkheim, De la Division du Travail Social; Lon L.
Fuller, The Law in Quest of Itself (Chicago, 1940), Chapter
III; George Gurvitch, Sociology of Law (New York, 1942),
Chapter II; Oliver Wendell Holmes, "The Path of the Law,"
Harvard Law Review, 10:457-478, March 1897; Jacque
Maritain, The Rights of Man and Natural Law (London, 1945);
R. B. Perry, Realms of Value (Cambridge, 1954), Chapter
XIV; Roscoe Pound, "The Call for a Realistic Jurisprudence,"
Harvard Law Review, 44:697-701, 1931, "Fifty Years of
Jurisprudence," Harvard Law Review, 51:444-4-72, January
1938, "Toward a New Jus Gentium,1 1 in F. S. C. Northrop, ed.,
Ideological Differences and World Order (New Haven, 1949),
90
One of the best examples of sociological law theory In
the United States is the contribution of the great American
Jurist, Benjamin N. Cardozo,- who, although not appointed to
the Supreme Court until late in life, nevertheless contri
buted much to law theory in his writings and legal deci
sions in the State of New York. The information which
follows in this chapter is drawn primarily from his trilogy
9
of Jural philosophy.
Roscoe Pound refers to Benjamin Cardozo's work as the
outstanding example of American sociological jurispru
dence.10' Moses J. Aronson writes1’ * ' that, although Car
dozo's early education included training in the classics,
An Introduction to the Philosophy of Law, Chapter II;
Jaffe, The Pragmatic Conception of Justice, Chapter II;
William Ernest Hocking, Present Status of the Philosophy of
Law and of Rights (New Haven, 1926), pp. 47-52.
^The Nature of the Judicial Process (New Haven, 1921),
The Growth of the Law (New Haven, 1924), The Paradoxes of
Legal Sciences (New^York, 1928).
10Roscoe Pound, ’ 'Fifty Years of Jurisprudence."
11
"Cardozo's Sociological Jurisprudence," Journal of
Social Philosophy, 4:13, 1938.
in the literary arts and philosophy, he was no "arm-chair
jurist." He had the advantage of rough and tumble practice
for many years at the bar. The criticism of "arm-chair
jurist," by the way,is continually made against other the
orists of law by sociological jurists. The other legal
theories, social jurists contend, usually come from legal
philosophers who have never had to apply law to the actual
social condition.'1 '^
What Cardozo offers us is a sociological theory of law
which is ready to be put into use, one which can cope with
the existential struggle and which, at the same time,
attempts to preserve the continuity of legal tradition. He
is obsessed by the desire to formulate a pragmatically sig
nificant theory of law. "Our.law," Cardozo begins, "stands
13
indicted for uncertainty." There is a lack of agreement
on common law, he continues, a lack of precision in legal
terms; there are conflicting and badly drawn statutory pro
visions. This failure in law Is the problem of stare
12
Note Northrop, Complexity, p. 53. Cardozo, The
Paradoxes of Legal Sciences, p. 36. Hereafter cited as
P. L. S.
•^cardozo, The Growth of the Law, p. 3. Hereafter
cited as G. L.
92
decisis. Law is lost in a "wilderness of precedent."
Precedent has become the "spawning progeny" which is for
getful of our mercy and is rending those who fought to spare
it. The output of precedent by vast numbers of minds has
merely compounded the vagaries of the law (G. L., p. 5).
Judges march at times to pitiless conclusions under
the prod of a remorseless logic which is supposed
to leave them no alternative. They deplore the
sacrificial rite. They perform it, none the less,
with averted gaze, convinced as they plunge the
knife that they obey the bidding of their office.
The victim is offered up to the gods of jurispru
dence on the altar of regularity. (G. L. p. 66)
Cardozo says that we need a scientific restatement in law,
one which takes two forms: The first is a restatement of
order in precedent, and the second is a need for a philo
sophy that will mediate between the conflicting claims of
stability and progress, and supply a principle of growth
(G. L., p. l). It is principally the latter form which
raises the question of moral authority and its relation to
the law. Cardozo warns us that we fancy ourselves to be
dealing with some modern problem,: but when it is laid bare,
we see it at the heart of ancient mysteries, the "reconcil
iation of the irreconcilable" (P. L. S., p. 4), i.e., how
it is possible both, to have a stable authority upon which
93
to base decisions and, at the same time, to allow for the
changes in society.
The dynamic element in law, Cardozo writes, is the
society in which it is conceived; and while it is true that
some judges do not get beyond matching colors of many sam
ple cases spread upon their desks, stare decisis, this is
14
never the heart of the law. Cardozo is no extremist when
it comes to sociological law; he does not seek to destroy
the analytical level of law; he sees the solution of law in
•compromise, "fusion in due proportion" (G. L., p. 3).
Resort to a philosophy of law in the development of
rules and principles presupposes knowledge of the
principles and rules which it is our business to
develop.... Many things must be learned as facts in
law as in other sciences. They are the coin which
we must have in our pockets if we are to pay our
way with legal tender.... We must talk as one law
yer to another, or we shall be talking at cross
purposes. (G. L., pp. 97-98)
Cardozo desires to emphasize the basic importance of philo
sophy in law. It is the basis of such questions as, How
did law come into being? How does it grow? What are its
imperatives? etc. All of these questions are foundational
to Cardozo's interpretation of social law.
^Cardozo, The Nature of the Judicial Process, p. 20.
Hereafter cited as N. J, P.
We live in a world of change. Society is inconstant,
and law, as the offspring of society, is also inconstant
(P. L. S., p. 10). Manners and customs are the source of
law (P. L. S., p. 15). They are also the source of moral
ity in the society (P. L. S., pp. 15-16, 25). Citing L.
Hohhouse's Morals in Evolution, Cardozo tells us that the'
sanction or source of obligation for moral rules is the
pressure of society on the individual mind, and that this
pressure is at work in the making of the law declared by
courts (P. L. S., p. 17). Analytic jurists such as Austin,
Holland, Gray, and Jethro Brown, Ross, ert al, who maintain
that there is no body of law antecedent to the judge's, are
committed to a completely oversimplified and erroneous in-
IS
terpretation of the law. ^ Austin's law theory has no in
terior dynamic.
All his teachers, relates Cardozo, delighted in the
erroneous security of the "true law" which was purported to
lie behind the society's law; happily, then, the lawyer's
duty was only the interpretation of the statute and the
decision (G. L., pp. 3^-36).
1 R
■Aronson, "Cardozo's Sociological Jurisprudence,"
p. 23.
95
Cardozo uses the term mores throughout his work to
describe the basis of legal dynamics (P. L. S., p. 18,
N. J. P., pp. 30-31, G. L., p. 53).' In the pragmatic
sense, the law must be satisfied to test the validity of
its conclusions by the logic of probabilities (G. L.,
P. 33). Cardozo is a sociological jurist with a pragmatic
methodology, he speaks amply of James and Dewey throughout
his discourses. The oft-quoted phrase of Oliver Wendell
Holmes applies to Cardozo's philosophy of law. "The life
of the law has not been logic, it has been experience."
Unlike Hans Kelsen, Cardozo links justice with law; in
fact, the basis of law is the norm of justice in the so
ciety. The justice of the society shapes the pathway of
law (P. L. S., p. 31)- Justice is a jural norm (P. L. S.,
p. 35). Cardozo does not claim to know the law's exact re
lation to the ethical norm of justice, but morality at the
jural level is what may be efficiently enforceable by the
society through the aid of jural sanctions (P. L. S.,
p. 35). The content of the moral ideal Is a compound of
the imagination, tradition, and observation of social
■^N. J. P., p. 33* citing Oliver Wendell Holmes,
Common Law, p. 1.
realities (P. L. S., p. 36), and interaction between im
pulse and habit, custom and reflection (P. L. S., p. 36).
Men must get away from the notion that law is fixed and im
mutable (G. L., p. 54). Judgments are a process of crea
tion and adaptation to certain existential situations; they
are not, as in the Blackstonian era, discoveries. Laws are
more or less tentative hypotheses, approximate formulations
of a uniformity and order inductively apprehended (G. L.,
p. 54). But, Cardozo reminds.us, we must also seek to
avoid the other extreme, that is, law as a series of isola
ted "dooms," the general merged in the particular, "the
principle dethroned and the instance exalted as supreme"
(G. L., p. 54). Seek to find a balance between the prin
ciple and the social need in our legal speculation, Car
dozo tells us. "Law accepts as the pattern of its justice
the morality of the community whose conduct it assumes to
regulate" (P. L. S., p. 37).
The law holds that it is the crowd that is the medium
between the saint and the sinner (P. L. S., p. 37). The
community itself ranks its individuals as to their intelli
gence and virtuousness, and patterns its law after these
leaders (P. L. S., p. 37). The law grows as an organism
97
grows, the judge stretches a point of the given law in re
sponse to a moral urge created within him by the dynamic
drives of his society in germinal unrest. By doing so, the
judge introduces a new application of precedent, and very
shortly a new tradition has arisen. Duties, at first, have
only moral imperatives, then they develop legal ones. The
moral norm and the jural norm are brought together into a
single.principle (P. L. S., p. 43). Cardozo's position on
moral and legal norms closely resembles the utilitarianism
of J. S. Mill. Mill divides morality into two classes:
the acts of obligation left to our choice, and the acts of
17
obligation enacted by law.
Whenever a relation between human beings becomes
organized into one that is specifically jural, the
duties attached to it by law are assimilated more
and more to those attached to it by morals.
(P. L. S., p. 45)
The moral authority concerning legal decision is by no
means clearly defined, Cardozo maintains; the trumpet has
an uncertain sound. The judge shapes his legal decisions
by his experience in life, "his understanding of prevailing
~ ^ P . L. S., pp. 43-44, citing Everyman's edition,
p. 46.
98
causes of justice and morality; his study of the social
sciences, at times in the end, by his intuitions, his
guesses, even his ignorance or prejudice" (G. L., pp. 85-
86). The web of social law is tangled and obscure, shot
through with a variety of colors. "Attempts to objectify
its tjustice] standards, or even describe them, have never
“j Q
wholly succeeded."
The truth, of course, is that in the development of
law, as in other fields of thought, we can never rid
ourselves of our dependence upon intuitions, or
flashes of insight, transcending and transforming the
contributions of mere experience. (G. L., pp. 89-90)
Next, Cardozo faces the problem of understanding pro
perly the sway of social force, the elements which the
judicial process should resist, and the elements which it
should encourage into becoming law. The analysis of social
interest and its relative importance, is one of "clews"
(G. L., pp. 93-9^). That is to say, the search is for some
external norm, this norm is the custom or conviction of the
social order (G. L., p. 96). Cardozo agrees with Leon
Duguit, that law is not the product of an individual human
G. L., p. 86, citing Geny, Science et technique et
droit prive positif, I, pp. 49, 50.
99
will, but it is the "common conviction" of the society
(G. L., p. 104). Social norms oscillate in society among
the various cases that appear in the law. Each law is e-
valuated in accordance with the specific social context,
and the task of judging the law is found to be. a choice
between antithetical extremes (P. L. S., p. 62). The final
norm of law, if it be possible to describe, is the welfare
of the collective community (N. J. P., p. 66).
In summary then, what is Benjamin Cardozo1s principle
of moral authority? First, morality and law spring from
the same source, viz, the customs and habits of the parti
cular society. He speaks of these customs and habits as
the mores of society. Second, the imperative of law rests
upon society’s demands, i.e., society creates .its own im
peratives, and then these Imperatives become the final
court of appeal. Third, the methodology for most accurate
ly implementing the law Is to be confirmed by its function
al results. Cardozo's legal theory thus represents a
clear untrammeled expression of sociological jurisprudence,
but its very clarity points up its major weakness. If
moral obligation in law resides not in the "positive law,"
but In the "living law," or in that which Cardozo calls the
100
mores, on what basis do we claim "oughtness" for these
mores? If we examine the issue closely, we see that, in
practice, "oughtness" does not reside in the living law at
all. For example, the living law of the South is against
integration, but, nevertheless, the courts Insist upon its
being put into practice as the only "just" and equitable
procedure. In other words, Cardozo suggests that the moral
imperative resides in the social will, i.e., in the living
law or mores; but it is frequently the case that the social
will is as static as is the positive law. Cardozo Insists
that the social status quo is to be the norm, and yet, fre
quently, reforms In the law do not reside In this status
quo. Often it is the case that changes in the law are im
posed upon a society against the society's collective will.
These changes appear to have their source, in one sense,
"outside" of the community consciousness. Perhaps an ethi
cal genius or an organization becomes the consciousness,
or "gadfly," of the society, e.g., Socrates or certain
political reform organizations.
Cardozo is too optimistic about the dynamic nature of
the society. The living law is not always dynamic, fre
quently it is static. What is needed is a more precise
101
analysis of living law, an analysis which will make clear
both the dynamic and the static elements which inhere in
the law.
Underhill Moore and P. S. C. Northrop, well aware of
the problems of sociological theory as offered by Judge
Cardozo, suggest a more precise analysis of the living law.
They suggest that living law has a dual nature, i.e., that
there is both a "low" and a "high" frequency living law
(Northrop, Complexity, p. 7^). The "low" frequency law is
society's status quo, while "high" frequency law is an im
perative which transcends the social status quo and anti
cipates a moral order which, in turn, becomes the norm for
the socially static level. The static social demands be
come the norm for positive law, and the "high" frequency
law is actually tomorrow's social status quo; it is the
growing edge of creative moral insight. The question
arises, Is there a way of defining this "high frequency"
law in a precise manner, i.e., are we now introducing some
type of meta-imperative to which the society may appeal?
Underhill Moore and P. S. C. Northrop have sought to re
solve this question.
CHAPTER V
THE FORMALISTIC INFLUENCE ON SOCIOLOGICAL
JURISPRUDENCE
I
Benjamin Cardozo1s Jurisprudence falls prey to the
same criticism that is frequently advanced against John
Dewey’s value theory* viz* Cardozo assumes a definition of
value which he never provides. Cardozo's assumption is
that* by nature* society is progressive* enlightened* and
moving toward certain desired goals* even though it is
frequently the case that these goals can never be defined
specifically.
In a desire to resolve this difficulty of undefined
norms* an attempt at precision was made by Professor
Underhill Moore of Yale University. Moore sought to intro
duce a system of norms which could be measured. The in
strument which he chose for measuring the norms was the
behavioristic psychology of his contemporary at Yale*
Professor Clark L. Hull.
102
103
Moore agrees with the sociological jurists that
"positive law," that is, the law which regulates society,
bases its imperatives upon "living law." The living law is
the "inner order of* society" (Ehrlich's phrase). The liv
ing law's approach, the sociological jurists claim (and
Professor Moore again agrees), is vastly superior to a pure
law theory, such as Kelsen's, for living law rests upon
much more than an ambiguous Grundnorm. Sociological
jurisprudence rests upon an inner order which can be veri
fied by sociological science.
However, the fact that questions concerning the ethi
cal legitimacy of living law could be raised, suggested to
Moore that the imperative of law lay still deeper within
society than had heretofore been assumed. Man's ideals ap
pear to "run ahead" of his social actions, Moore tells us.
These "ideals" are called "tomorrow's" high frequency living
law (Complexity, p. 7^), and the true "oughtness" of the
law is contained in tomorrow's high frequency living law.
The task of the jural scholar is to anticipate and predict
tomorrow's living law today, in much the same manner as a
^See Chapter VII.
104
physicist demonstrates physics as a predictable science.
To accomplish this, Moore applies the principles of be
havioristic psychology as they had been defined by Hull.
Northrop writes of Moore:
If he were able by such a scientific method to
deduce the norms constituting tomorrow's high-
frequency behavior from today's high-frequency
behavior, he would then have t.oday a meaning for-
the "ought" different from today's living law
high-frequency "is" and hence an objective,
empirically verifiable, criterion of normative
social reform. (Complexity, p. 76)
Moore's method assumes at the outset a given postulate
system of undefined signs, a set of terms, a set of primary
postulates, and a set of theorems derived from explicitly
stated antecedent conditions. Proceeding from these
methodological assumptions, Moore introduces a valuational
■ 2
schema in nine steps, as proposed by Clark L. Hull:
(l) The primary need under which any given organism may
survive. (2) The reduction of these primary needs by a
given course of action. (3) This need reduction leads .to
a conditioning in the individual (Pavlov). (4) The
2
Clark L. Hull, "Value, Valuation, and Natural-
Science Methodology," Philosophy of Science, July, 1944,
p. 127.
105
stronger need reductions supplant the weaker ones.
(5) On occasion, avenues of need reduction vary according
to what Hull has called "behavioral oscillations."
(6) At the value level these need reductions are defined
as "strivings." (7) It is possible that the need reduc
tion appears at several levels in order to reach the ac
complished satisfaction. (8) The stimuli at a level other
than the "satisfied" level are called secondary reinforcing
agents. (9) After "conditioning" the secondary levels may
take the place of primary need satisfaction levels (through
what is generally referred to as "learning").
For an example of these nine steps in operation, we
may look to Hull's own presentation, for he offers Moore's
nine steps in his own particular value schema. Hull sum
marizes as follows:
(i) Original need.
(II) Substance or state of affairs possessing
power of mediating need reduction.
(ill) Original need reduction.
(IV) Habit formation defined (sHr), stimulus,
habit, response.
106
(V) Reaction (striving) potential (sEr), stimulus.,
reaction, response.
(VI) Striving (objective valuative behavior).
By way of example, let us consider Bentham1s pleasure-
pain calculus (1780) in the light of Hull's schema.
Bentham writes:
Nature has placed mankind under the governance of
two sovereign masters, pain and pleasure...pleasure
and what comes to the same thing, immunity frcm
pain.^
Defining pain as being the same as Hull1s need, and
pleasure the same as his need reduction, Bentham might con
ceivably have said, if he were writing today, that Value
(II) becomes manifested under conditions of (i) through the
power of (ill); (ill) then generates (IV), which leads to
process (V), the instrument for producing (VI), which, in
turn, generates (VII), the objective valuation.
Here is the methodology which Underhill Moore proposes
to use in his quest for determining an "ought" derived from
tomorrow's high-frequency law. With this measuring in
strument, he seeks to get "behind" the facade of obvious
3Th eory of Legislation, p. 5.
107
social attitudes. He hopes to touch the ultimate "needs”
or "drives" which are basic to the human organism. The
"needs" which carry with them authority for all legal con
sideration.
Unfortunately, however, as Moore himself admits, his
4
attempt is a complete failure from its outset, and, as
F. S. C. Northrop comments, it is only the absolute honesty
of Moore which forces him to his unhappy conclusion
(Complexity, pp. 33, 76). Moore and his colleague,
Charles C. Callahan,.attempted the construction of a mathe
matical formula for predicting tomorrow's living law to
day by applying Clark Hull’s behavioristic methodology to
jurisprudence; it proved to be nugatory. Moore's attempt
to observe the spatio-temporal total high-frequency behav
ior of people in the society, proved to be unworkable in
any extensive situation relating to human culture.
For example, Moore found the variables in Hull's
methodology so uncontrollable in dealing with such a minor
procedure as restricted parking on a street in New Haven,
4
Underhill Moore and Charles C. Callahan, Lav/ and
Learning Theory: A Study in Legal Control," Yale Lav/
Journal, 53:1-136, December 1943.
108
that to attempt to apply this method to the inner order of
420, 000, 000 Chinese was entirely unthinkable. (Moore and
Callahan).
However, Moore's work was fructifying, at least in a
minor sense, for, in a negative way, it demonstrated what
could not be done. The law of parsimony having done its
worst, it enabled others to clear the ground for more ade
quate attempts. These attempts, however, must remain true
to the behavioral methods. Yet they must also afford the
opportunity to isolate enough of the important common vari
ables to enable the sociologist to have some means of pre
dictability. However, this predictability would be more
than merely a physio-chemical reductionism.
One such effort is the work of Northrop, and the pri
mary concern of this chapter is a discussion of this
attempt.
No possible selection of variables in the data proved
successful in finding a formula connecting the inner order
of a system at one time to the inner order at a later time.
Hence, Underhill Moore's attempt to determine the cultural
dynamic by the logic of identity proved a failure.
But Northrop has no intention of abandoning this
109
method. Rather, he seeks to make It more precise. What
actually occurs, Northrop tells us, is that a historical
development takes place, a development which advances
through the overlapping of legal ideas. That is to say,
some rare individuals who are sufficiently informed reject
the older theories of conceptualizing and integrating the
raw data of experience and introduce new principles of law
to take the place of the older, failing ones.
Northrop admits that this methodological procedure
progresses in jumps (Complexity, p. 123), yet with three
important constants: First, all newly conceived systems
must negate some of the premises of the older conceptual
system. Second, an individual's "true" knowledge must al
ways be regarded as the specification of universal laws
which that particular individual satisfies. Finally, any
new knowledge presupposes the creative inventiveness of the
freely inquiring human spirit.
Benjamin Cardozo's belief that the judge could answer
legal questions by introducing some type of pragmatic or
or functional realism into each legal decision is impos
sible, because legal norms which have been based upon ethi
cal norms may, or may not, conform to the empirically given
110
cultural norms within the context of the society.
Northrop is convinced that ethical norms are indeed
empirically testable and., therefore cognitive. However,
norms are not tested by some pragmatic operational process.
They are, rather, tested through an epistemological and
philosophical analysis based upon antecedent principles of
natural science. "Ethics and law neglect the rest of
science and philosophy at their peril" (Complexity, p.203).
The approach suggested by Northrop I shall describe as
empirical formalism.
The major obstacle to resolving the problem of impera
tives in the lav; has been with us since Descartes. North
rop tells us that it is the struggle between facts and
values. At the center of this controversy .lies that
puzzle traditionally described as the "mind-body" problem.
All previous attempts to solve this puzzle have produced
two conflicting conclusions which, nevertheless, rest upon
a common assumption.
c
F. S. C. Northrop, "The Neurological and Behavior
istic Psychological Basis of the Ordering of Society by
Means of Ideas," Science, April 23, 1948, pp. 411-417.
Hereafter cited as N. B. P.
Ill
One explanation of the "mind-body" problem has main
tained that human responses are in terms of remembered
norms called universals, rather than merely responses de
termined by physical events called particulars, and, there
fore, human behavior must be based on extra-empirical and
extra-biological factors (N. B. P., p. 412).
The assumption is, that in the realm of the biological
there are only mechanical causes and no purposes, only
particular events and no remembered events, no universals.
Therefore, biological answers to this perplexing difficulty
prove not to be answers at all. This position, says
Northrop, has been maintained traditionally by dualists
such as Descartes and Locke; and by idealistic German phil
osophers and social scientists. The difference between
Naturwissenschaften and Geisteswissenscharten is common to
most German idealisms. Purpose, memory, and the existence
of universals, establish a reality which transcends the
biological; it is an a priori level, an autonomous moral
level in human phenomena (N. B. P., p. 413).
Contrary to the dualistic conclusion is that of bio
logical mechanism, usually represented by the positivistic
■British and French social sciences. The mechanists main-
112
tain that all biological systems are mechanical systems,
responding to stimuli which are to be described philoso
phically as particulars rather than universals. Memory,
purpose, etc., are purely epiphenomena, and, hence, ideas
are of necessity particular "things" (patterns of behav
ior). The universals, obviously, do not exist, they are
merely semantically misunderstood symbols of a noncognitive
order.
What is important about this "universal-particular"
controversy is that both parties to the dispute agree upon
the basic premise in the disputation, viz, the premise that
biological or natural systems provide no knowledge of uni
versals and, hence, cannot be considered normative
(N. B. P., p. 415). It is the bifurcation of the universal
and particular that Northrop desires to refute in his ana
lysis of normative judgments. He is convinced that recent
investigations bring into question this division between
the universal and the particular. The specific works from
which he draws his conclusions are those of Warren S.
McCulloch and Walter Pitts, as well as the Investigations
of John von Neumann, Arturo Rosenblueth, ■ Norbert Wiener,
113
and Julian Bigelow.^
The final result is that the experimental findings of
McCulloch and Pitts, von Neumann, Rosenblueth, et^ aT, de
monstrate to Northrop the presence of form constructs
(universals) in man's neurological makeup. These "neuro
logical" universals are both "physical" and at the same
time formal. These "neural nets," as Northrop calls them.,
provide the physical basis for man's intellectual ability
The best detailed accounts of this issue may be
found in the following material: H. D. Tandahl, W. S.
McCulloch and VI. Pitts, "A Statistical Consequence of the
Logical Calculus' of Nervous Nets," The Bulletin of Mathe
matical Biophysics, 5:135-137* December 1943. R. Lorente
de No, "A Study of Nerve Physiology," Studies from the
Rockefeller Institute for Medical Research (New York,
1947). W. S. McCulloch and W. Pitts, "A Logical Calculus
of the Ideas Imminent In the Nervous System,1 1 The Bulletin
of Mathematical Biophysics, 5*.126-133* December 1943.
W. S. McCulloch, ’ ’A Heterarchy of Values Determined by the
Topology of Nervous Nets," The Bulletin of Mathematical
Biophysics, 7:83-93* 1945. John von Neumann, The Computer
and the Brain (New Haven, 1958). P. S. C. Northrop,
"IdeologicalMan in his Relation to Scientifically Known
Natural Man," in Ideological Differences and World Order.
Northrop, "The Neurological and Behavioristic Psychologi
cal Basis of the Ordering of Society by Means of Ideas."
Walter Pitts, "How We Know Universals: The Perception of
Auditory and Visual Forms," The Bulletin of Mathematical
Biophysics, 9:127-146, 1947. Arturo Rosenblueth, Norbert
Wiener, and Julian Bigelow, "Behavior, Purpose, and Tele
ology," Philosophy of Science, 10:18-24, January 1943.
Norbert Wiener, Cybernetics (New York, 1940).
114
to universalize, i.e., to construct formal patterns
(thoughts). Natural science, writes Northrop, is princi
pally a deductively formulated theory. What occurs is that
data from outside the organism enters the brain of the ob
server through the sense organs and is "intuitively
apprehended;1 1 this intuitive apprehension either does or
does not correspond with the neural net which is reverber
ating in the observer's brain. Briefly stated, Northrop
conceives of universals as spinning neural nets packed
within the brain cavity. These neural nets were "built" in
the brain, so to speak, through years of developmental
conceptualizing.^
Now if it is the case that this intuitively apprehend
ed data does correspond to the neural nets, then the
scientist's goal is satisfied (there is a correspondence
between what is experienced and what the neural nets expect
to experience through their "constructs"). If it does not
correspond, the information of the senses forces him to
^Northrop, "Ideological Man in his Relation to
Scientifically Known Natural Man," and "The Neurological
and Behavioristic Psychological Basis of the Ordering of
Society by Means of Ideas."
115
either sharpen his sensory experience,rub his eyes as it
were, or reconstruct the postulates of his scientific
theory, i.e., he may have to draw upon reverberating cir
cuits with quite different (universal) patterns.
What holds true for logical scientific deducibility is
also the case for normative social theory, reasons North
rop. But because of the ambiguity in controlling sociolo
gical evidence, because of the uncontrolled variables in
sociological evidence, more often than not the reverbera
ting circuits which supply the "universals” for the social
sciences, are helplessly confused and muddled. Neverthe
less, the vast network of reverberating social neural
universals acts as censors upon all new experience, i.e.,
they constitute the individual's or the society's preju
dices, biases, cultural attitudes, etc. But these patterns
have been developed at the ideological level through
familial, educational, religious, commercial, and legal in
stitutions. And it is this pattern development which is
the instrument that tends to mold what i_s in social insti
tutions toward what ought to be (Northrop, N. B. P.,
p. 4l6). The possibility of changing these censorial
neurological patterns is only feasible when the majority
116
of society sees the obvious dlscrepencies between the
normative universal impulses and sensory experience, and,
seeing this is only accomplished by abundant communication
and what Northrop calls persuasive education.
Northrop contends, if one would criticize as invalid
the whirling residue within the individual or the society,
one must deal with man's or society's philosophical commit
ments; for it is these philosophical commitments upon
which normative claims ultimately rest. That is to say,
the basic philosophical presuppositions which individuals
or societies perpetuate are initially responsible for the
"neurological universal" which men have. Philosophical
anthropology, he adds, is the tool for analyzing the basic
valuation levels which have been fostered in men's minds,
and it should be recognized that it is upon these valua-
tional constructs that legal theory rests. Northrop con
cludes therefore, that contemporary sociology, anthropol-
ogy, and neurological psychology, all converge to improve
Underhill Moore's attempts in sociological jurisprudence
(Northrop, Complexity, Chapter VII). These disciplines do
so because they enable the scientist to determine more
adequately the basic philosophical principles to which
117
Individuals or societies are committed, and to describe
more accurately the "neurological universals" which moti
vate such individuals or societies. The problem Northrop
sets before himself is an analysis of the living law, not
at the quantitative level but rather, at the qualitative
level (Complexity, Chapters XXI, XXII).
Northrop desires to understand the relationship which
operates between the universals which social man has con
structed as normative assumptions, and the expression of
these universals at the cultural level. Northrop is not
content, however, merely to list these normative attitudes;
he also seeks to introduce new universals for evaluating
good and bad cultural attitudes and, consequently, good and
bad lav;. We may thus ask, What Is Northrop' s procedure for
developing adequate universals?
II
As Professor Lon L. Puller.has seen, [Northrop writes]
actual legal experience is that of a "law in quest of
itself;1 1 a law, namely, which is not merely what it
Is but also something more than what it is, in the
sense, first of trying to formulate what ought to be,
and then of trying to be that substantively specific
"ought" which ever beckons us, thereby making real
differences In the law, but which, nevertheless,
ever, in its completeness, eludes us. The same can
118
be said of moral as distinct from legal experience,
but how to determine this “ought to be" is the
question. (Complexity, p. 239)
Both the historical and po'sitivistic answers to the
question of what ought to be are incorrect, says Northrop.
The historical answer identifies the "ought" with yester
day's "is," and the positivist answer identifies it with
today's "is" (the status quo). Both positions are refer
red to by Northrop as "culturalistic fallacies." The his
torical, because it seeks to hold as absolute a resuscita
ted ancient relativistic social theory and the positivistic
because it assumes that today's relativistic social theory
is the final valuational authority. Values are the de
termining factor in normative assumptions, and it is the
world's mutual incompatibility, on the question of values,
which has produced the conflicts which continually plague
mankind. Values reflect externally the internal philoso
phical premises from which one's normative theory is
derived (Complexity, p. 242). To test any normative theory
against a set of denotatively, given values is to commit the
"culturalistic fallacy." To say that "good" means satis
faction or pleasure, or whatever, is to attempt to define
"good" by the use of a culturally relative term. G. E.
119
g
Moore called this the "naturalistic fallacy,1 1 but he In
troduces his own confusion. What Moore should have real
ized, Northrop contends, is that this is a culturalistic
rather than a naturalistic fallacy. But, Northrop contin
ues, if one derives the verification of norms from nature,
rather than from culture, then the culturalistic fallacy
can be avoided.
Facts, qua facts, are neither good nor bad. Goodness
and badness are predicates which, apply, not to facts, but
to propositions which refer to facts for the criterion of
their truth or falsity. Furthermore, these propositions
are not good- or bad because of any primitive ethical qual
ity of goodness or badness which resides in them. The only
properties which propositions possess, aside from their
meaningful content, are properties such as truth or
falsity. From this it follows that not only are facts qua
facts neither good nor bad, but also that propositions qua
propositions are neither good nor bad. It is only their
truth value relations to facts which make propositions good
or bad. A proposition is not good or bad because either
^Principia Ethica, pp. 10 ff.
120
It or the facts to which it purports to refer are good or
bad; a proposition is bad because it is false to the facts
to which it purports to refer; and a proposition is good
because it is true to the facts to which it purports to
refer. Truth about facts is good, falsity about facts is
bad (Complexity, p. 244).
Northrop insists that it is necessary to introduce a
theory of types in order to make the proper distinction.
"Natural” facts he calls first-order facts. Such facts are
antecedent to scientifically verified philosophical theory,
and such facts are neither good nor bad. However, some
facts may be classified as second-order facts, these are
"cultural" facts and can be designated good or bad. These
second-order facts, achieve their goodness or badness be
cause they are facts which derive their character from
human behavior, based on beliefs in scientifically verifi
able propositions about nature and natural man, which are
true or false (Complexity, p. 245). Hence, if one should
say that Hitler's conduct with the Jews was bad, one must
mean, at least in part, that it is possible to demonstrate
that Hitler's view of the biological nature of man was
false, and it was possible to demonstrate this by the
121
ordinary convention of formal scientific theory (Complex
ity, pp. 245-246). First-order facts are the introspected
or sensed experience in any culture. Second-order facts
are cultural artifacts, that is, they are partially the re
sult of human theory of first-order facts. Nature and
natural law are the names for all first-order facts and
their relations. ■ Culture and living law are the names for
all second-order facts and their inner order (Complexity,
p. 254). Concretely, what happens is that a person, con
fronted with countless first-order facts from within and
from without himself, selects, probably with hypothetical
trial and error, certain facts as elementary and the key to
the defining, remembering, ordering and anticipating of all
the others. Then the explicit or implicit set of symbols
or ideas, designating the totality of'human knowledge as
thus understood, constitutes the person's or society's
system of meaning. To look at all the first-order facts
which are taken thus as elementary and fundamental is to'
evaluate in the manner of natural law ethics. Hence any
evaluation of good or bad law is implicit in a set of mean
ings which are true or false (Complexity, p. 257).
Northrop emphasizes that the symbols can obtain their
meaning by pointing to existential, intuitive factors such
as a particular pain or passion as well as by axiomatical-
ly expressing formal, rationalistic relations. It should
not be assumed that natural law theory is excessively
rationalistic (Complexity, p. 257)»
The question also, whether first-order facts qua
human theory entail a particular physics and metaphysics,
or any metaphysics at all, is an empirical question for
natural science, writes Northrop (Complexity, p. 257). All
that a natural ethics need require or assume, writes
Northrop, in its method is, that there is an empirically
verified theory of first-order facts with some specific
content (Complexity, p. 257). However, I must say paren
thetically, to assume.that empirical verification is the
only necessary requirement for natural law theory appears
to ignore almost completely the imperative force implied in
legal sanctions.
Northrop1s analysis is almost wholly devoid of con
siderations concerning the "ought." In fact, in the entire
analysis there is but one small concession to the question
of "oughtness." He writes, the "good" is not a primitive
term, but is a predicate term applicable to second-order
123
facts which have been defined in terms of scientifically
true first-order facts. Ought, he continues, is the f or-
me-ness of the good, i.e., the making of a true theory mine
occurs when, by appeal to first-order facts which are mine,
I find the theory to be empirically verified b^r or for me
(Complexity, p. 259).
In short, goodness calls merely for empirically veri
fied theory of first-order facts, whereas oughtness re
quires in addition the for-me-ness, by way of discovery of
that truth (Complexity, p. 260).
Any defense of ethics which appeals to second-order
facts must, of necessity, be of a relative nature, but the
appeal to first-order facts becomes quite another matter.
The latter method is natural science, and the former method
is social science (Complexity, p. 255).
The "is" of first-order facts may be used to measure
second-order "oughts." The first-order facts become cogni
tive standards for measuring goodness or badness in terms
of truth or falsity. The basis of living law rests on the
reliability of first-order facts.
To conclude, first-order facts enable the Individual
to escape the relativity of living law, for first-order
124
facts are the same in all cultures. But by first-order
facts, Northrop does not merely mean those demonstrated by
some type of sensuous nominalism; he is not a radical em
piricist. This is clear when he writes, ’ ’Defining proper
ties of either atoms or human beings with sensed qualities
expresses a false theory” (Complexity, p. 267). Rather,
to be empirically verified, one needs to understand the
meaning of a "construct," what he calls the "concept by
g
intellection."
The "concept by intellection" escapes the relativity
of differing sense organs and is of cognitively meaningful
scientific value. It is cognitively meaningful on the
basis of first-order facts, but first-order facts are
demonstrated to be true through logical systems, i.e., for
mal constructions of a logical nature suitably derived for
analyzing scientific questions. However, more will be said
concerning this shortly.
In order to defend the "concept by intellection" at
the value level of experience, Northrop returns to his
%. S. G. Northrop, The Logic of the Sciences and the
Humanities (New York, 1947), Chapter V.
125
initial premise; that is, he returns to the significance
of the physicalistic universal complex in man which, he is
convinced, has been demonstrated by such writers as
McCulloch, Pitts, Wiener, and von Neumann.
Northrop rejects Kant's separation of moral philoso
phy from natural philosophy, because he is convinced that
modern physiology can demonstrate the principles of the
universal. No transcendental philosophy is required.
Northrop sets out to anchor the prescriptive judgments upon
a naturalistic, or behavioral, base. He places his second-
order cultural or social facts upon first-order natural
scientific facts. The dynamic living law of a culture
draws its raison d1£tre from its relationship to the truth
of natural scientific lav;. If a second-order fact corres
ponds to a first-order fact, x^e must say that it is good;
10
if it fails to do so we must say that it is bad. North
rop is convinced that this -operation will solve Underhill
Moore's problem. Moore had sought to place moral authority
upon universally agreed upon norms within society but, not
being able to find universal second-order social norms,
10See Page 120.
126
he considered his work a failure. If he had understood
that his norms were not to be found at the cultural second-
order level but, rather, at the first-order level, he could
have made some advancement on the problem of prescriptives.
But may we not ask Northrop just what is the prescrip
tive force which one should look for in the ethical
society? For example, is there a relationship between
first-order facts and the moral assertion that one ought
to keep his promises? It appears to me that Northrop com
pletely overlooks the uniqueness of prescriptive decisions.
He has contributed much precision to questions of valua
tions, but whether he has a solution well in hand is
another matter indeed.
CHAPTER VI
SOCIOLOGICAL JURISPRUDENCE: A CRITICAL ANALYSIS
If we are to undertake a successful analysis of
Northrop1 s sociological schema, it will be necessary to,,
make a slight sojourn into his epistemological theory.
This will enable us to evaluate his jural conclusions more
circumspectly.
Northrop's solution to the problem common to sociolo
gical jurisprudence is manifestly pluralistic. Pluralism
has characterized his philosophical position from his ear
liest writings on. To be sure, he holds that scientific
method is basic to any consideration of modern problems.
But it is a method which is sufficiently supple to allow
multifarious procedures in both the natural and the social
sciences, and even in the humanities. Northrop recognizes,
in other words, that the scientific methods for solving
problems of fact are much more devious than is usually sup
posed, and that the complex character of such problems
results in a relativity of method. It follows, according
127
128
to Northrop, that there can he no one scientific method.
To talk about scientific method apart from the specifica
tion of the particular stage of inquiry for a given type of
problem is as meaningless as it is to talk about either
space or time by itself, apart from the specification of
the frame of reference relative to which each is deter
mined.^" Northrop holds that the question as to whether
Francis Bacon, Morris Cohen, or John Dewey had the proper
scientific methodology is a pseudo-problem because each
thinker1s methodology proved to be adequate or inadequate
relative to certain specific questions (L. 5. H., p. ix).
Each logic, for example, is capable of resolving certain
questions and incapable of resolving others. Therefore, to
talk of one logic being better than another is inappropri
ate.
As it proceeds, Northrop goes on, scientific inquiry
exhibits at least three major stages: (1) The analysis of
the problem which initiates inquiry, (2) the Baconian in
ductive observation of the relevant facts to which the
1
Northrop, The Logic of the Sciences and the Humani
ties, p. ix. Hereafter cited as L. S. H.
129
analysis of the problem leads one, and (3) the designation
or relevant hypotheses suggested by the facts (L. S. H.,
P. 29).
At the first stage, being concerned with the analysis
of the problem which initiates inquiry, one. is guided to
the root of the problem. "The problematic situation,"
writes Northrop, "must be reduced to the relevant factual
situation" (L. S. H., p. 30). By the problematic situation
Northrop means the situation which generates the problem
that initiates inquiry; and by the factual situation he
means the situation which contains the relevant facts to
which the analysis of the problem leads.
People have rushed by this first stage too quickly,
Northrop continues. Even such men as John Dewey are guilty
of seeking to move too quickly to the second stage, the
Baconian stage, before the first stage is properly under
stood. The scientific method of the first stage is the
analysis of the problem in order to guide one to the facts
relevant to a clear understanding. The first stage en
deavors to select a relatively few facts from an infinite
possible number which may prove applicable to this specific
problem (L. S. H., p. 3^).
130
The second stage of inquiry is reached when the first
stage has designated what appear to be the facts appli
cable to the specific problem. This second stage, or
Baconian method, is inductive; it usually involves three
sub-steps, (l) observation, (2) description, and (3) class
ification, and begins with the immediately apprehended
fact. It ends with described fact (L. S. H., p. 35).
It is important to note the difference between immed
iately apprehended fact and described fact. If one desires
pure fact, free from described or theorized fact, then he
must remain absolutely silent, for the moment he reports or
describes what has been observed, the fact becomes proposi-
tionized and, hence, theorized (L. S. H., p. 36).
The third stage is the stage of formal deduction, the
stage of concepts by postulation. The meaning of the whole
or part is designated by the postulates of some specific
deductively formulated theory in which it occurs (L. S. H.,
p. 62). At this stage, one does not find the meaning of
concepts of postulation by observing anything. For
example, in the deductively formulated electromagnetic
theory of Lorentz, the word "electron" is a postulational
concept, not an intuited one. The third stage of inquiry,
131
however, plays a basic role, not merely in the most mature
of western sciences, but also in almost every system of
western philosophy (L. S. H., p. 63).
A concept apprehended by intuition, such as "yellow,"
gets its meaning from this immediate apprehension. A con
cept of intuition does not depend upon scientific or
philosophical theory. However, quite the reverse is true
concerning concepts by postulation. They do depend upon a
specific, deductively formulated theory. Hence, when a
word is used in two different sets of postulates in two
deductively formulated theories, it may have two quite
radically different meanings. In other words, it ceases to
remain an identical concept (L. S. H., p. 64).
Northrop concludes, therefore, that the three levels
of investigation indicate that the traditional battles be
tween logicians concerning the correctness of Bacon's,
Descartes', Dewey's, or Cohen and Nagel's theories of
scientific method, are pseudo-problems.
The difference among the respective logics becomes an
issue only when the assumption is made that there is but
one scientific method. When it is noted, however, that a
scientific method is relative to the stage of inquiry with
132
which one is concerned, and that the different stages act
ually entail different methods, then the issue between the
combatants vanishes. Each logic can be considered correct
for a certain type of inquiry (L. S. H., p. 39).
To bridge the pluralistic gap which Professor Northrop
has thus constructed, he proposes what he calls an epis-
temic correlation:
An epistemic correlation is a relation joining an
unobserved component of anything designated by a
concept by postulation to it3 directly inspected com
ponent denoted by a concept by intuition. (L. S. H.,
p. 119)
This occurrence is inescapable in any type of knowledge
which introduces entities, relations, or events which are
not directly inspected.
It is by means of epistemic correlations that unob
servable entities and relations designated by concepts of
postulation take on an operational meaning and thereby be
come capable of being put to experimental test. For this
reason it is erroneous to claim that metaphysical theories
are unscientific. For, if one specifies one’s metaphysical
postulates unambiguously and sets up epistemic correlations
between the entities of his metaphysical theory and direct
ly inspected data, thus permitting verification, then every
133
requirement for scientific procedure is met and meta
physics becomes a responsible mode of knowledge.
The plural method which Northrop has applied to the
natural sciences is also applicable to the social sciences*
to what he calls "normative social problems" (L. S. H.,
p. 278). Social knowledge may only be verified by intro
ducing this pluralistic epistemology* and ‘ the three stages
of verification must be applied to social as well as to
scientific knowledge. The basis for knowledge is at all
times a concept by postulation. In the specific area of
Jurisprudence* this postulation is contractually construct
ed. Each type of theory* natural and normative* specifies
a philosophy.
Experimentally verified theory in natural science*
when its method is analyzed to designate its epistem-
ology and when its primitive assumptions are deter
mined to specify its ontology* defines a complete
verified natural philosophy. A normative social theory*
when its assumptions are made explicit* defines an
ideology or in other words a possible moral and social
philosophy.
Specifically* Northrop contends, a moral* thoughtful*
1
choosing* purposeful individual and social man* is the
2
Northrop* Ideological Differences and World Order*
p. 424.
scientifically verified, natural, neurological -
man and scientific man are one and tie same.
Northrop is conscious at the same time of . ...
criticism of scientific or sociological natural!
is quite correct, Northrop concludes, in reaiizi
so-called "naturalists'-1 in ethics are guilty .1
a "cultural fallacy." The naturalists comml t th
alistic fallacy whenever they assume that the re-
social norms may be defined by a constant sou 1 at
which is applicable to all societies; the fa!la.
ly perpetuated by making some common element, v
pleasure or interest, the criterion for all ::c.i
(L. S. H., p. 280). But the fact is, accord.! ay
rop, that G. E. Moore and the intuitionists nave
prey to an even more ambiguous position. Moore1
the immediately apprehended ethical primitive.-, 1
example of identifying the criterion of the non;
man, with the immediately intuited actual of .-.is
introspection. In other words, an sociological 1
values" gained phenomenologically by relne Besci.
is an equally impressive impossibility (L. S. H.
All of these modern ethical traditions overlook
135
that the introspectively given factor, whether it be
"pleasure" or the "intrinsic good," are culturally condi
tioned principles.
What these modern moral theories fail to recognize,
Northrop continues, is that the first property of normative
theory is synthetic. This synthesis necessitates that the
normative theory be tested only by an empirical method.
Kant, G. E. Moore, and W. M. Urban, among others, have cre
ated the major.problem for resolving the normative diffi
culty. Their traditional criticism of the "is" has
surreptitiously produced a paradox, i.e., an irreconcilable
3
division between moral and natural science. This para
doxical situation has caused many positivistic scholars of
ethics to conclude that normative theories have no scienti
fic status, that ethics is purely hortatory. Simply
stated, the confusion which has arisen in ethics is the
result of Moore's insistence that the verification of
normative theory, by appeal to introspectively given
3
Immanuel Kant, Fundamental Principles of the Meta
physics of Morals (Chicago, 1949). William Marshall Urban,
Fundamentals of Ethics: An Introduction to Morals (New
York, 1930). Moore, Principia Ethlca.
136
personal or public social facts, is impossible. That any
empirical datum whatsoever is in error if it is applied to
normative theory. Moore's assumption is wholly wrong; in
fact, Northrop contends that it is a non sequitur. Science
is not to be considered empirically opposed to ethics.
That is, the avoidance of the naturalistic fallacy does not
prohibit an empirical appeal to all facts, it merely pro
hibits an empirical appeal to certain facts. Consequently,
we can resolve the paradox, provided that in our verifica
tion of normative theory we apply the empirical method to
facts other than those explicitly repudiated by the avoid
ance of the naturalistic fallacy or culturalistic fallacy,
in its precisely stated, demonstrably correct, formulation
(L. S. H., p. 286).
Specifically, Northrop continues, in order to avoid
the culturalistic fallacy we must test ethical theory by an
empirical method applied to empirical facts. Theories, he
concludes, are held to be empirically verified if deduc
tions from them correlate correctly with the immediately
inspected data. And if these deductions do correlate with
our immediate data, we are able to advance tremendous
philosophical conceptions--conceptions which have provided
137
us with our historically significant attitudes of the
universe and of ourselves. Our verified deductions are, in
fact, "epistemic correlations" which provide scientific
criteria for verification of cultural normative theory.
For example,, note Northrop1 s previous relationship between
first-order and second-order facts (Complexity, pp. 245-
246, 254-260, 266-268, 271-272, 279-280). In other words,
the intuitive sense data of all men are similar, but it is
the conceptual analysis of these data which produces con
flicting philosophical points of view. And since natural
science has provided us with the most operatively signifi
cant schema for analyzing our data, it behooves us to
attempt to adjust its methodology and its findings to
normative considerations.
While I find myself in general agreement with North
rop ' s approach and expect to introduce his logic for eval
uating ethical and legal norms in my concluding chapter as
a partial solution to the legal problem, I find that there
is one important deficiency in his method. This deficiency
is the primary source for the intuitionist1s criticism of
all naturalistic normative systems. Let us examine the
case more closely.
138
The origin and justification of ethical judgments re
main a perennial problem. Anthropological explanations
have indeed proved important and necessary considerations
where the origin of ethical judgments is concerned. How
ever, attempts to justify the normative claims in ethics
are quite another matter, and, in fact, every attempt to
answer normative questions immerses one once again in the
question of the "ought." The questioner finds himself
thrown into the thick of the valuational struggle, and
Northrop's solution takes on penultimate rather than ulti
mate significance.
The chief difficulty arises with respect to the "edges
of justification." That is to say, the naturalist always
seeks first to justify his decision by appealing to some
common maxim. This maxim, in turn, is defended within the
context of still more general principles, and these general
principles in yet more general ones, and so on, until one
finds himself operating within an infinite regress. It be
comes necessary to halt this regressive procedure some
where, and the intuitionist finds the end of the procedure
in the a priori, in the normative "first principle," which
139
4
cannot be "proved." Anti-rationalist theories agree at
this point with the intuitionist. However, they replace
the a priori with an affective nonrational agency, such as,
conscience or revelation.
But naturalistic systems have had consistently an al
together harder time justifying their conclusions, and the
naturalist is well aware of his problem. If he tries to
confirm his moral assertions by recourse to a more primi
tive phenomenon, he still has the responsibility of con
firming the moral significance of this more primitive
phenomenon. In an attempt to escape this labyrinth, more
than one empiricist has resorted to an a priori explanation
to fulfill the basic requirement of justification for his
ethical conclusions.
For example, a priori justification may be found in
David Hume's reflections, when he insists that causality
and the external world rest, not upon established inductive
or deductive principles, but, rather, on the fact that na
ture, in a mood of caprice perhaps, has established our
thinking after this disjunctive manner.
4
Note Moore, Principia Ethica, Chapter I.
140
It follows, therefore, that the difference between
fiction and belief lies in some sentiment or feel
ing which is annexed to the latter, not the former,
and which depends not on the will, nor can- be com
manded at pleasure. It must be excited by nature,
like all other sentiments; and must arise from the
particular situation in which the mind is placed
at any particular juncture. Whenever any object
is presented to the memory or senses it immediately,
by the force of custom, carries the imagination to
conceive that object, which is usually conjoined to
it, and this conception is attended with a feeling
or sentiment, different from the loose reveries of
the fancy. In this consists the whole nature of
belief.5
What, for Hume, proves epistemologically to be true con
cerning belief, also is true for benevolence, self-love,
and justice. All are founded in our natural affections
(Hume, Enquiries, pp. 176-192).
The a priori foundation appears also to be common to
the thought of Jeremy Bentham, who rests the justification
for his principle of utility on "the natural constitution
6
of the human frame."
Nature has placed mankind under the governance of two
sovereign masters, pain and pleasure. It is for them
David Hume, Enquiries Concerning the Human Under
standing, p . 48.
^Jeremy Bentham, An Introduction to the Principles of
Morals and Legislation, ed. Philip Wheelwright (Garden
City, 1935), P. 10.
141
alone to point out what we ought to do., as well as to
determine what we shall do. (Bentham, An Introduction,
P. 7)
If we move from the early modern period of Hume and
Bentham, we realize that the need for the a priori has not
diminished. Twentieth century ethical methodology faces
the same problem and, characteristically, arrives at simi
lar conclusions. Clarence I.Lewis might be presented as
the classic example. He seeks to justify valuational prin-
ciples by some type of "congenital a priori."
To act, to live, in human terms, is necessarily to be
subject to imperatives; to recognize norms. Because
to be subject to an imperative means simply the
finding of a constraint of action in some concern for
that which is not immediate, is not a present enjoy
ment or a present suffering. To repudiate normative
significances and. imperatives in general, would be to
dissolve away all seriousness of action and intent,
leaving only an undirected floating down the stream
of time, and as a consequence, to dissolve all sig
nificance of thought and discourse into universal
blah.... The validity of this categorical imperative
to recognize genuine imperatives of thought and
action, does not rest upon logical argument finally,
because presuming that the one to whom the argument
is addressed will respond to considerations of con
sistency and Inconsistency, presumes the validity of
precisely what Is argued for. The basis of this
imperative is a datum of human nature.... That the
good life represents the summum bonum is, as we have
said, not to be argued. It Is the universal and
7
Philip Blair Rice's phrase.
142
rational human end; the end we aim at so far as we
approve of our aims and of ourselves in aiming, and
do not recognize some perversity of foolishness or
weakness of will in our motivations and our doings.
That fact is a datum of the human attitude to life.
It is not a datum of the sort commonly called psych
ological : we recognize in ourselves the perennial
liability to the weakness mentioned, by which we are
solicited to depart from this ideal of ourselves which
still we cannot set aside. It is that norm which can
be repudiated only by repudiating: all norms and the
distinction of valid from invalid in general, by re
ducing all that we can purpose or accept with the
-sense of rightness or correctness or validity, to
the status of the non-significant--to mere
"psychological data.'
In other words, If any other words could be as appropriate,
valuation can only be justified by showing, that valuation
is in fact a part of the construction of human nature. It
is essential to the human makeup, to value.
The a priori appears even in the thought of such icon
oclastic interpretations in ethics as those of Herbert
9
Feigl. He writes:
Clarence Irving Lewis, An Analysis of Knowledge and
Valuation (La Salle, Illinois, 1946), pp. 481-483.
^"De Principiis Non Disputandum," Philosophical
Analysis, ed. Max Black (Ithaca, 1950). I have referred to
Peigl as iconoclastic, but actually Feigl appears to me to
be iconic, rather than Iconoclastic. Peigl and positivism
generally appear to be a new absolutism, desirous of con
verting ethics to the common consent of a given authority
or power.
143
The purposes that we adduce In the vindication of
ethical standards are not a matter of personal cap
rice but are (usually) the resultants of age-long
experience in the harmonization of intra- and inter
individual needs and interests, of experience, personal
and social, guided by the adaptive and integrative
influence of intelligence. Par from being "arbitrary"
or "capricious" in the usual sense of these words, our
terminal purposes are usually held with the most
serious and profound conviction. The only sense in
which the misnomer "arbitrary" could be sensibly in
terpreted here is in the sense of "ultimate," i.e.,
nonvindicable and resting on the (logically) contingent
traits of human nature. Such standards as those of
justice and kindliness, as well as of self-perfection,
are the counterpart of goals such as those of a har
monious, peaceful, and progressive humanity. The
goals or purposes are in turn resultants of the nature
of man and his needs and interests in ever widening and
ever more interdependent social contexts. The evolution
of a global code of morality out of its tribalistic
precursors offers in many ways a striking parallel to
the development of the norms of scientific method ouJq
■ of its magical, animistic, and metaphysical .origins.
What I am contending in all of this is that, on each
occasion which has been cited, the author finds it neces
sary to escape to some confirming principle which appears
to lie, so to speak, beyond the structure of his system.
In each instance, final justification for his system
appears to be based upon some teleological or quasi-
teleological principle. Each writer asks all individuals
'*'^Feigl, in Black, ed., Philosophical Analysis, pp.
146-147.
144
to recognize the principle that nature herself contains a
common element which may be classified as normatively bind
ing on mankind. The binding norm may be defined as the
"value urge" in human nature. But no attempt is made to
justify scientifically the contention that mankind "ought"
to follow the valuational pattern of nature. To maintain
that the goals and purposes are'the result of man's nature
is in no way an adequate defense of the fact that they
"ought" to be. That they "ought" to be is assumed by the
naturalist as obvious, as a priori.
The a priori in its classical form (since Kant) has
meant "prior to experience" or logically independent of
experience. It is possible for something to be independent
of experience by being a creative construction of language,
or it could be a principle unique to the individual, and
residing in the individual, and yet not altered by exper
ience. However, the a . priori in this latter sense Is not
to be disclosed except within experience. Kant offers us
the interpretation which postulates the conceptual a priori
upon a structural a. priori in his discussion of space:
Space is not an empirical concept which has been de
rived from outer experience.... On the contrary, this
outer experience is itself possible at all only through
145
' the representation. Space is a necessary a priori
representation, which underlies all outer intuitions....
How, then, can there exist in the mind an outer intui
tion which precedes the objects themselves, and in which
the concept of these objects can be determined a priori?
Manifestly, not otherwise than in so far as the intui
tion has its seat in the subject only, as the formal
character of the subject, in virtue of which, in being
affected by objects, it obtains immediate representa
tion, that is, intuition, of them; and only in so far,
therefore, as it is merely the form of outer space in
general. ^
My use of the a . priori, then, is a somewhat technical,
albeit obscure, way of talking about the Kantian intuition.
Perhaps contemporary empiricism, while rejecting the
rationalistic methodology and transcendental metaphysics,
is, nonetheless, being forced to face up to a most annoy
ing question concerning the ultimate structure and final
source of the "ought." Are not the previously cited writ
ers actually saying that the basis of moral authority,
i.e., the ground of the normative, is simply that nature
demands it of us? One "ought" to make the right moral
decisions because this is the nature of things. Does not
the "ought" appear as some type of natural-law principle
arrived at on intuitive grounds?
11
Immanuel Kant, Critique of Pure Reason, trans. N.
Kemp Smith (London, 1929)* PP. 38-41.
146
It is my contention that Northrop is no more free
of the problem of the a priori than are any of the other
empiricists, but that he thoroughly ignores this fact.
Northrop tells us that there must be, at all times, a
distinction between first- and second-order facts, and
that the confusion of these two orders has created the
"naturalistic fallacy." ' The first-order facts are the
"is's" of experience, the second-order facts are the
"oughts" (Complexity, p. 255). The first-order facts are
the facts of science; they are the raw sense data
(Complexity, p. 254), which in previous times have been
called natural-law facts. Northrop sees no reason why we
cannot continue to apply this name (Complexity, p. 254).
He therefore advocates a return, with caution--a caution
fostered from an awareness of G. E. Moore's criticism--to
the "natural law" theory of Jurisprudence.
Natural law Jurisprudence is the thesis that scienti
fically verified theory of the "is" of first-order
facts provides the cognitive standard for measuring
the goodness or badness of second-order artifacts.
(Complexity, p. 255)
Therefore the "oughts" of the second-order facts are always
relative and are "good" only to the degree that they cor
respond to the first-order facts. By this Northrop means
147
that, through trial and error, one may ascertain whether
the second-order facts are truly "good" by the degree to
which they coincide correctly with all the first-order
facts. The "good" also carries with it functionalistic
overtones. The "good" has pragmatic justification. First-
order facts validate second-order facts as mine, as they
are confirmed as a means-end principle for my personal
needs.
As an example, I cite two of Northrop1s illustrations
concerning his principle of natural law verification
(Complexity, pp. 267-268). Sir Robert Filmer with his
patriarchalism in seventeenth century England, which spread
into.. Virginia, was wrong because his idea was based upon
the biological theory that the genetic traits of people are
transmitted to the next generation only by the male, and
the female only serves as a receptacle. Justice, accord
ing to Filmer, was therefore properly administered when the
"rights" of the male members of society only were consider
ed. Because of this genetic theory, Christian patriarchal
ism has dominated much of the thinking in the old South.
But this type of thinking should be abolished, because it
is a bad second-order fact since the genetic theory on
148
which it is based is a false first-order fact.
A second of Northrop1s examples concerns Hitler's
purification tactics in Germany, instigated by the frenzied
genetic principle of Herrenvolk. In both examples the re
sulting "evil" is to be laid at the feet of false first-
order principles.
It is my contention that, underlying the entire inter
pretation of these two examples, there is an a priori
assumption--the assumption, namely, that what is .the true
order of nature is the good; and it is good because it is
the order of nature. Hence, what emerges from Northrop's
reflections appears to be a type of physicalistic optimism:
Whatever corresponds to the flow of nature as It moves in
its organic dynamic is good (and we may add, just); what
does not so correspond is false or evil.
Let us suppose that Hitler, could have fulfilled his
aims; that he could have purged the race. It seems doubt
ful that his actions would have been called Into question
because of faulty genetic conclusions. Rather, his actions
could have been defended by Nazi sociologists on the grounds
that he had done a service to mankind at the sociological
level. He had rid the world of subversive elements. This
149
needed to be done so as to rid the world of divisive ele
ments which would, in the long run, hinder society from
ultimately unifying into a societal whole. And, as a
matter of fact, the attitude which would have prevailed
would have been very similar to the attitude which now does
actually prevail concerning the Nazi regime.
In other words, it appears to be possible to produce
first-order facts which defend the actions of Hitler on the
basis that what he did is for the common good of the
society. It could thus be argued that the only effective
way to deal with a subvertive national heritage which-
threatens a good social order is'to eliminate it physically
just as it is necessary, on some extreme occasions, to ex
terminate mad dogs.
Professor Northrop continually reminds us that we are
not to confuse first- and second-order facts. If we do, we
shall be guilty of the naturalistic fallacy. We are,
rather, to create in the minds of individuals in society,
12
universal attitudes (reverberating circuits) at the cul
tural or second-order level which coincide with the uni-
12
See Pages 113-114.
150
versal attitudes (reverberating circuits) of natural
scientific first-order facts. If the formal constructs of
first-order facts as universalized in man’s mind parallel
the universalized second-order constructs* the individual
concludes that his cultural or social decisions are good;
and if he applies a principle of "for-me-ness" they become
"oughts.”13
While this approach produces precision for Northrop*
the essential question appears to be still unanswered--the
question* namely* why is acquiescing in the pattern of na
ture the final determiner of morality? Northrop apparently
assumes a priori that when the biological laws of the
organism have been accurately defined* then ultimate ethi
cal answers have likewise been demonstrated. He writes:
As man* in his theories of natural science* comes to
think of first-order facts about himself and nature in
genetics* psychology* astronomy or terrestrial mecha
nics* in terms of formally constructed cognitive
concepts by postulation of universally quantified laws*
the possibility is open to the human mind and to its
normative Imagination of ordering human relations
normatively by such conceptual means. (Complexity,
pp. 271-272)
There appears to be an aura of Rousseauian optimism
^3See Page 123.
151
surrounding this a priori naturalism--an optimism concern
ing the ultimate value of natural development as a final
ground for legal decisions. The optimism, however, seems
to have been articulated only once; and, at that, we see
just a glimpse of it when Northrop writes:
Any positive and living law community which is com
patible, therefore, with this theory of first-order
facts would seem to be one which is egalitarian in
its most primitive and basic criterion of the good
and just, and in which a person is intuitively sensi
tive emotively to the different relative radically
empirical determinable feelings of all other creatures.
Put negatively... if I completely deny or condemn
everything about another person, his undifferentiated
as well as his differentiated deeds and consciousness,
I in part deny and condemn myself. (Complexity, p. 270)
The fact remains that many find no logical or scien
tifically demonstrable connection between the moral demands
and the natural order. It is the contention of many that
if the "normative" is not to be diluted into meaningless
ness, it is necessary that a radical distinction between
fact and value be preserved in some sense so that the im
perative may in fact be significant. However, I am con
vinced that Northrop does provide an excellent methodology
for dealing with value assertions at one level of our
experience. I shall speak more of this method in my con
cluding chapter.
152
Since the intuitionists comprise the most important
school of thought seeking to maintain this distinction be
tween fact and value, let us now consider their specific
approach to the question of "is" and "ought."
CHAPTER VII
NEO-KANTIAN AND INTUITIVE JURISPRUDENCE
I
Thus far we have attempted to trace the problem of
ultimate moral authority through the legal considerations
of positivistic and sociological jurisprudence. In both
instances I have maintained that the moral contentions of
each system have proven inadequate in certain respects.
Let us -now consider the contribution of intuitionism to
this disconcerting and ubiquitous question.
In 1939j the Association of American Law Schools auth
orized the creation of a special committee "for the purpose
of preparing and securing the publication of translations
on...the materials in all aspects of philosophy and juris-
, . 1
prudence in the last fifty years. This authorization
constituted the beginnings of the Modern Legal Philosophy
^Kelsen., General Theory of Law and State, p. vii.
153
154
2
Series. The first jurist whom the committee chose for the
series was Hans Kelsen. This singular honor points up the
importance of this scholar. His study. The General Theory
of Law and State, was the initial contribution to the
series. I have chosen this work as specifically represen
tative of intuitionism in jurisprudence. But, it will also
be helpful to our■considerations to take notice of his most
recent work, What is Justice? a collection of Kelsen's
more important essays, to which explanatory chapters have
been added.
As will be shown shortly, the juristic position of
4
Hans Kelsen is extremely difficult to classify. One rea
son that this is the case is, no doubt, his consistent and
rigorous acceptance of the implications of Kantian philo
sophy, especially of the Kantian division of science and
metaphysics. The Kantian analysis had the historical
2
An earlier series had presented the nineteenth cen
tury jurists (1909).
3(Berkeley, 1957)* P- 397. Hereafter cited as W. J.
See Friedrich's short but interesting analysis in
The Philosophy of Law in Historical Perspective, Chapter
XVIII.
155
effect of fostering anti-metaphysical conclusions; cul
minating in positivism. While; at the same time; it laid
the foundations for a wholly new and rigorous system,,
exemplified in current existentialism. Kelsen has tacitly
blended these two divergent streams in his Jurisprudence.
His effort has resulted in a dualism in his thought which
5
has defied categorization; but which has produced fructi
fying law theory, whether one is in agreement with, or in
opposition to, his conclusions.
For example, two of the most important terms in
Kelsen's theory are "positive” and "normative;" and yet,
traditionally, in a study of ethics, these two terms are
not found together. Customarily, anyone working within the
positivistic frame of reference has been substantially free
of normative conclusions. In Kelsen1s thought, however,
the two principles appear together repeatedly and in co
operative interdependence.
See Alan Gewirth, "The Quest for Specificity in
Jurisprudence," Ethics, 69:155-181, April 1959. Also
Edwin W. Patterson, Jurisprudence: Men and Ideas of the
Law (Brooklyn, 1953), PP. 260-264.
156
In an initial sense, Kelsen maintains that lav/ is a
positive theory which derives its concepts exclusively from
the contents of positive legal norms (G. T., p. xiii).
That which is not found in the contexts of positive legal
norms cannot be considered a legal concept (G. T., p. xiii).
Kelsen calls this initial legal concept the "pure theory of
law." The pure and positive legal norms are to be kept
free from all elements foreign to the specific methods of
science--of a science whose only purpose is to present a
logic for the understanding of law (G. T., p. xiv).
The problem of law is a problem for science, i.e., for
scientific technique. It is not to be considered a pro
blem of morals. Law and justice are. two different con
cepts.
Law as distinguished from justice is positive law....
[The] science of positive law must be clearly distin
guished from a philosophy of law.
If It were possible to know absolute justice, positive lav/
would be superfluous (G. T., p. 13). "It would not be
necessary to coerce people to be happy" (G. T., p. 13).
^G. T., p. 5. "The Pure Theory of Lav/ and Analytical
Jurisprudence," Harvard Law Rev lev/, 55:^-70, November
19^-1, citing What is Justice? p. 266.
157
However, the fact that pure justice is not known but is
merely an euphemistic paraphrase which is inaccessible to
human cognition (that is, justice is a term which is opera
tive only at the emotive level of experience), makes posi
tive law not only important but mandatory. Justice is an
irrational ideal (G. T., p. 13; W. J., p. l). If justice
is regarded as rational it quickly leads to conflicts of
interest, and the solutions of these interests are brought
about shortly at the expense of one party over another.
VJhich party's claim is a "just" claim can never be ans
wered, because there is no final cognitive defense of jus
tice. Hence, it is thus apparent that only a theory.of
"pure positive law" may fulfill legal settlements, and only
as a science of law, never as a metaphysical solution
(G. T., p. 13). Positive law is something posited or crea-
7
ted by certain acts. Positive law deals with the law as
it is, not with the law as it ought to be (W. J., p. 269;
G. T., p. 5).
Legal norms are not valid because they themselves have
7
Hans Kelsen, "Value Judgments In the Science of Law,"
Journal of Science, Philosophy and Jurisprudence, July,
1942, citing What is Justice? p. 214. Also refer to G. T.,
p. 14.
158
a content of binding self-evident force which is self-
evident, nor are they binding because of this inherent
appeal (G. T., p. 113).
Positive law appears empirically in the form of
national legal orders connected to each other by inter
national legal orders.(G. T., p. 181).
Prom what has been written, we might be led to believe
that Kelsen has been merely explicating the classical posi-
tivistic position; but Kelsen's observations lead to a
second important consideration, viz, to the normative ex
pression.
■Law, Kelsen writes, is a system of valid norms.
Whereas every factual science, including sociology, "de
scribes its object--nature~-in 'is' propositions; juris
prudence describes its object--law--in 'ought1 proposi
tions" (W. J., p. 269; G. T., p. 162). Law as a command is
"de-psychologized." It does not imply a will in any
psychological sense.
Any attempt to represent the meaning of legal norms
by rules describing the actual behavior of men— and
thus to render the meaning of legal norms without
having recourse to the concept of "ought"--must fail.
(G. To, p. 37)
The distinction between an "is" proposition and an "ought"
159
proposition is fundamental for law (G. T., p. 37).
Kelsen, therefore, insists upon removing normative "oughts”
from his theory of law insofar as these "oughts” would con
sist of moral evaluations of law, but he does consider it
important to retain the "oughts” insofar as they describe
the social relations established by the given legal norms.
Professor Kelsen stresses "positivism” to attack sociologi
cal jurisprudence; he stresses normativism to attack
positivistic jurisprudence.
Kelsen endeavors to analyze the structure of legal
norms and their logical relations of superordination and
subordination (G. T., p. xv). The pure theory of law is
not intended to be merely a method for instrumenting law
without consideration of its creative meanings. Kelsen
does not intend to offer a legal system which is merely
stare decisis, i.e., a system which is able to provide so
lutions to problems of precedent but is at a loss to direct
the solution of legal problems outside of historical prece
dent. To restrict oneself to an analysis of jural law is
to lock oneself in a static theory of law. Restrictive
analysis in this sense was John Austin's most important
single failure. Kelsen's pure theory of law recognizes
160
that "a study of the statics of lav; must he supplemented by
a study of its dynamics, the process of its creation"
(W. J., p. 279). The pure theory of law is a scientific
method but is not to be considered an exact replica of the
method pursued in natural science.
To make this distinction clear, Kelsen introduces the
principle of causality as an example of the difference be
tween the science of nature and the science of jural law.
In the natural sciences, the theory of causality is stated
as a hypothetical proposition, i.e., it is stated in terms
which connect a condition with a consequence. But the
principle of causality in law must be defined differently.
The necessary causal conflictions of the physical sciences
are on one plane; the cause and effect relationships of
volition in human choice, instrumented by reason, are on
another (Kant's phenomenal causes, and noumenal causes).
The difference between laws of nature and rules of jural
law is that, whereas the former refers to things and the
reaction of things, the latter refers to human beings and
human behavior. If there is A, then there will be B. The
A designates a cause, and B is its effect. ■ This is the
normal method of the physical sciences. It is the princi-
l6l
pie which Hume found impossible to deduce. Yet there is
also a causal relationship in the "normative" sciences,
i.e., in ethics, theology, law, etc. In the normative
sciences, on the other hand, the principle of causality has
the form: If A, then there "ought" to be B. Kelsen calls
this second mode the principle of "imputation." If some
body has done you a favor, you ought to be grateful to him;
or, if a man sacrifices his life for his country, then his
8
country should honor his name.
The difference between causality and imputation is
that the relation between the condition, which in the
law of nature is presented as cause, and the conse
quence, which is here presented as an effect, is
independent of a human or superhuman act; whereas the
relation between condition and consequences which a
moral, religiou, or legal law asserts is established
by acts of human or superhuman beings. It is just
this specific meaning of the connection between condi
tion and consequence which is expressed by the term
"ought." ("Causality and Imputation," p. 6)
Causality and imputation are to be interpreted as
"categories’ of experience. They find themselves located
Q
in the realm of Kant's transcendental logic. Neither of
8
Hans Kelsen, "Causality and Imputation," Ethics,
6l:6, October, 1950. Also refer to G. T., pp. 45-46.
^W. J., p. 363* citing Kelsen, "Science and Politics,"
American Political Science Review, September, 1951* PP.
641-661.
162
the two termSj "causality" and "Imputation," may be de
fined as a "force immanent in reality" (W. J., p. 362).
They are "principles of cognition, the specific instrument
by which natural science describes its object" (W. J.,
P. 362).
Kelsen's primary criticism of the sociological jurist
is that sociological jurisprudence fails to recognize the
imputations, that is to say, it fails to recognize the
oughts of legal theory. Sociological theory tells one how
men indeed do behave but never how they "ought" to behave.
Sociological jurisprudence presupposes the normative con
cept of law. The object of social theory is not to defend
a system of valid norms, it is rather a defense of human be
havior operative in current society. But what is to dis
tinguish such social behavior from behavior which falls
outside the area of sociological lav;? Nothing, answers
Kelsen. A norm which is actually never there is presup
posed to be there (G. T., p. 75).
The object of positive science, according to Kelsen,
is "natural reality," whereas the object of jurisprudence
is "legal reality" (W. J., 362, 363). "The specific sub
ject of legal science is positive’ or real law in contra-
163
distinction to an ideal lav;" (G. T., p. xiv). A legal
norm begins to exist at a moment when the decision has
already been made and when,, supposing the decision to be
the expression of a will, no will is any longer there
(VJ. J., p. 213). A legal norm owes its existence to a par
liamentary decision. Jurists never seek to prove the
"existence" of a legal norm by means of psychological phen
omena. A norm "exists" by being "valid" (W. J., p. 214).
It is this validity to which the concept of "ought" always
refers. A legal norm Is the specific "meaning" of an act
which is called a norm-creating act (W. J., p. 214).
The existence of a legal norm can be affirmed only if
an act has occurred. The stated meaning of this
action then becomes a legal norm. The egression
"positive" law means that law is a complex of norms
"posited" or created by certain acts. (W. J., p. 214)
Social jurisprudence contends that juristic law and
natural law are essentially the same. The jural laws
were not created by' some individual or some legislative
body, as positivism would maintain but, rather, jural laws
exist within nature herself and may be discovered through
the examination of nature (natural law). But, Kelsen con
tends, such a claim is completely beyond demonstration; it
is a myth formulated in an attempt to emulate the proced
164
ures of the natural sciences. "The reason forthe validity
of a norm is always another norm, never a fact" (W. J.,
p. 2 1 9), and the "facts" which condition the existing legal
norms are never the ground of the norm. "They are a
conditio sine qua non, but not a conditio per quam" (W. J.,
p. 219). A fact entails the existence of a. certain legal
norm; but only if there is a higher norm, does the lower
legal norm possess validity--and it does so only in accord
ance with the higher norm. For example, one constitution
is normatively valid because it manifests a will which is
in accordance with an earlier constitution, that is, one
constitution evolves out of and in harmony with its pre
decessor, the new deriving its validity from the old.
Hence, if we continue our search for an ultimate norm, we
shall eventually arrive at a basic norm, a first constitu-
tion--at least one which is logically first. But here the
similarity with the natural sciences ends. The cause-
effect relationship in juristic law is not an infinite
series. It has a starting point.
There must exist one ultimate reason, one's basic
norm, which is the source of the validity of all
norms belonging to a certain legal order.
(W. J., p. 219)
165
A norm is a valid legal norm [only] by virtue of the
fact that it has been created according to a definite
rule and by virtue thereof only. (G. T., p. 113)
All norms in jurisprudence must ultimately be traced
to a Grundnorm, i.e., to a basic norm, which is the funda
mental rule according to which the various norms of the
order are to be created (G. T., pp. 114, 396; W. J., pp.
262, 265, 280, 358-360). This Grundnorm is the sine qua
non for positive law and is presupposed as valid (G. T.,
p. 115). The Grundnorm of legal theory prescribes that one
ought to behave as the "fathers" of the constitution have
authorized (G. T., p. 116). By inserting the principle of
the Grundnorm, Kelsen does not seek to introduce some new
method into legal theory, he is merely attempting to make
explicit what all jurors have "unconsciously" assumed. The
Grundnorm answers the question, "How— and that means under
what condition--are all these juristic statements concern
ing legal norms, legal duties, legal rights, and so on,
possible?" (G. T., p. 117) It is required in order to
effect the initial transition from "is" to "ought," from
fact to norm.
Keeping in mind Kelsen's dual relationship of the
positive and normative which is operative in jurisprudence.
166
we can make the following observations concerning the
interrelation of moral authority and law.
First, Kelsen, would no doubt consider questions con
cerning moral authority basically inappropriate because
such questions tend to confuse ethical questions with legal
ones. At the level of analysis in the law, the competent
jurist concerns himself with the establishment of meanings
and intentions of the law as it functions within the con
stitutional society; he does not concern himself with ethi
cal reasons for the existence of the law. In this sense,
Kelsen's theory is positivistic, since both he and the
positivists agree that naturalism's demonstration of the
validity of law is essentially meaningless. On the other
hand, however, emotivism must face the question of moral
authority in a very crucial way, viz, how one may keep from
admitting such questions as justice and morality into one's
legal considerations, and, at the same time, free oneself
from the conclusions that, ultimately, jural lav; rests
wholly and completely on force or coercion.
To escape from the apparently nihilistic conclusions
with which positivism must contend, Kelsen has added to the
Austinian reflections the uniquely important principle of a
Grundnorm, which is basically ethical and a priori. This
Grundnorm is the a priori assumption that the positive laws-
given inductively ''ought1 1 to be obeyed. It is, according
to Kelsen, only because there is an "ought" as an a. priori,
"imputatively" established, that a judge has the "right" to
send the violator of positive law to the electric chair.
The Grundnorm is itself a nonlegal principle which may be
said to apply generally to all normative systems, i.e., to
the fields of ethics, religion, politics, etc. The Grund
norm is "presupposed" as valid. It assumes that one
"ought" to "behave as an individual," because legal obliga
tions are primitive and irreducible a. priori principles
essential to the meaning of jural experience.
It is evident that Kelsen1s theory is not solely an
emotivism, for his introduction of a . Grundnorm (a necessity
for his defense of legal theory as normative) closely re
sembles the position of the intuitionists, and, in fact,
his attack upon sociological jurisprudence is exactly the
same as G. E. Moore's attack upon the naturalistic thesis.
' * ' ( ^Note Patterson, Jurisprudence: Men and Ideas of the
Law, pp. 262-263. Also A. P. d'Entreves, Natural Law
(New York, 1951), pp. 106-107.
168
Sociological jurisprudence is merely a different form of
the "naturalistic fallacy." Also apparent in Kelsen*s
theory of law is its close affinity with the formal theory
of law. "A theory or science of law is pure or formal if
and only if it is free from admixtures with foreign ele
ments."11 Law is formal in the sense that any social or
physical event becomes legally relevant only insofar as it
fits (is subsumed under) the factual criteria which occur
12
in the antecedents and the contents of legal commands.
The legal philosopher should recognize the particular
rational organizational unity which is inherent in juris
prudence. :
The attitude of the pure theory of law is...universal-
istic. It is concerned fundamentally with law as a
whole* seeing every single phenomenon only in its
systematic relation to all other law* seeing in very
part of the lav; the function of the whole. ^
However* the law's formal validity has nothing to do with
11 „
Gustav Bergmann and Lewis Zerby* The Formalism in
Kelsen's Pure Theory of Law*" Ethics* 55:111* January 19^5.
12
Bergmann and Zerby* p. 117.
■^Bergmann and Zerby, p. 118* citing the "Reine
Rechtslehre" of Hans Kelsen.
169
its material validity or efficacy. To imply that there is
some logical'relationship between the two would thrust one
back once again to some type of undemonstrable sociological
reductionism.
Moral authority is centered upon the "ought" which is
to be obeyed; that is to say, it is centered upon the duty
that one is obliged to perform. Legal duty implies that
all men can and therefore ought to obey the laws which em
body the constitution of his society; the "ought" is at the
valuational level of experience and may not be reduced to
some other "thing." It is intuitionally. given.
Let us return momentarily to the familiar chess game
of Alf Ross to illustrate the point at issue. The rules
of chess constitute a normative system. Therefore, who
ever desires to play chess has to obey these rules. How
ever, to command one to "obey the rules of chess" is a
command that stands outside of the rules of the game. In
other words, the rule "obey the rules of chess," consti
tutes a meta-rule. But what secures the authority of the
meta-rule? Obviously nothing can secure its authority,
save the intuitional awareness of its existence. It is the
given of value experience; it is the Grundnorm. At the
170
international level, writes Kelsen, the meta-rule might he
defined as Pacta sunt servanda ("Compacts ought to he lived
up to"). Yet we should not assume that intuition of a
meta-rule constitutes some type of ethical basis for the
law. Kelsen insists that he is an ethical relativist. In
tuitional and absolutistic ethics have been historically
connected to each other in Anglo-American thought. This is
not necessarily the case, however, in German thought,
probably because of the influence of Hegelianism. Note for
example, Hickert, Weber, Diltey, and others.
The Grundnorm is ontological. It is at the level of
sollen, even as atoms are at the level of sein. The simi
larity to Kant is most obvious. It Is within the Grundnorm
that the principle of moral authority resides.
Before considering the preceding observations criti
cally, let us observe the jural intuitionistic interpreta
tions rendered by,two American scholars.
Morris Cohen and his son, Pelix, represent a type of
intuitionism in American legal thought. Both men have
contributed materially to the theory of jurisprudence.
171
Morris Cohen's contribution is most thoroughly demonstrated
in his magnum opus. Reason and Nature: An Essay on the.
Meaning of Scientific Method, but we find it expressed also
in his Reason and Law, American Thought, Law and the Social
14
Order, and Faith of a Liberal. These books clearly re
veal Cohen's thorough scholarship in the field of legal
theory. Morris Cohen's son, Pelix S. Cohen, represents his
father's position completely (see Ethical Systems and Legal
Ideals1"*), although he was not a philosopher but a lawyer
and judge. Because of his background, he tends to repre
sent a jural approach rather than a philosophical approach
to the issue. I shall here present their jural positions
concurrently.
All the intuitionistic legal philosophers have one
assumption in common. This is the assumption that values
always involve an "ought" which cannot, in any sense, be
derived from the "is," i.e., the basis for all value pre-
14
Reason and Nature: An Essay on the Meaning of
Scientific Method (London, 1931)• American Thought
^Glencoe, 1954)". Law and the Social Order (New York,
1933). Paith of a Liberal (New York, 1946).
"^See also, Pelix Cohen, "Transcendental Nonsense and
the Functional Approach."
172
scriptions' cannot be demonstrated by some empirical prin
ciple but must be assumed to be a priori.
With the Cohens, however, contrary to the opinion of
Kelsen, questions of law and questions of ethics are in
terrelated. Morris Cohen has linked law and justice
inextricably together. The concept of justice is to be
symbolic of the ethical way of life, a habit of searching
not merely for what happens to exist, but for what should
exist. Ethics "is a normative science, i.e., that it is a
logical study of the validity of judgments of right or
wrong, good or evil, implied in ourexpressed or tacit
choices. Its primary interest is with the extent to which
these judgments can be harmonized into a rational system"
(Reason and Nature, pp. 438-439). "Clearly...we start with
- 16
theories or opinions as to what is just. The end of law
17
is the administration of justice. If we accept Morris
Cohen's assertion that the concept of justice is crucial in
Reason and Law, citing Cohen, "Absolutisms in Law
and Morals," University of Pennsylvania Law Review, 84:90*
1936.
17
'Morris Cohen, "Jurisprudence as a Philosophical
Discipline," Journal of Philosophy, 10:230, 1913.
173
any legal inquiry, the question logically follows, how can
the principles of justice he discovered? To understand
Cohen's answer, it is necessary to see his mixture of prag
matism and logic (after C. S. Peirce). The foundations of
logic rest upon a "necessary assumption," writes Cohen,
where "necessary" is to be defined as what one cannot
13
avoid, and "assumption" is what one must "guess at." The
relationship of logic to physical "facts" is a correlation.
The logical implications in pure mathematics is a self-
sustaining element of knowledge within itself, it is not
to be subsumed under any psychological or physical events.
Mathematical and logical method can build up scienti
fic knowledge; the hypothetico-deductive procedure
of science can discover abstract relations which
characterize the world of phenomena.^9
But in the true Peircian tradition, Cohen agrees that the
way to make our ideas clear is to examine their possible
consequences. He therefore combines the rational logical
structure and the pragmatically demonstrable events, which
1 3
Arthur Bentley, "Logicians' Underlying Postula
tions," Philosophy of Science, 13:10, 1946.
^Bernard E. Brown, "Morris Cohen's Search for
Justice," Journal of the History of Ideas, 14:253* April
1953.
174
are the givens in the physical sciences, into a single
philosophical explanation. Applying this principle of
pragmatic rationalism to his legal theory, he attempts to
show that moral, authority in law rests upon a hypothetico-
conditional scientific base. It is the task of "just"
legal theory to demonstrate scientifically the "best" law
(Felix Cohen defines it as the "good life" rather than
PO
"justice" that is to be demonstrated ). The "best lav/"
may only be confirmed through experimentation. This ap
proach has the effect of freeing the law from the strict
constitutional postulates of Hans Kelsen and enables the '
jurist to determine "justice" in relation to its experimen
tal success or failure at the de_ facto level of judicial
decisions. But, Morris Cohen adds:
Ultimately we cannot prove the truth of our funda
mental assumptions, for our fundamental assumptions
determine the kind of a world which we perceive and
the world of phenomena Is wider than that of our
knowledge.21
It is vain to attempt to disprove the beliefs of those who
20
Ethical Systems, pp. 145, 292. See also, "The
Subject Matter of Ethical Science," International Journal
of Ethics, 42:397-418, July 1932.
21Brown, "Morris Cohen's Search," pp. 257-258.
175
disagree with us on fundamentals, ultimate choices are
merely a matter of the "will" (Brown, p. 258). However,
may we not put the question to Professor Cohen, that if it
is correct to assert that the ultimate factors by which
people live are in basic conflict, is there any possible
hope for reconciliation? For example, Is international co
operation illusory?
Morris Cohen is never really definite on this issue.
At times he stresses the role of logic as a mediating ele
ment in man's nature, and at other times he regards the
nonlogical matrix as irrefutable. However, in juristic
considerations, the Cohens take the principle of moral
authority as a primitive and irreducible postulate. It
would be a violation of their concept of the ethical to
attempt to define the "ought" of law in any explicit
"naturalistic" sense, for then the good or the legally ob
ligatory would not be basic but would be defined in terms
of the concepts designating the criteria. Pure intuitional
awareness is the only possible source of the moral imper
ative (Reason and Law, p. 107}. Both men agree with G. E.
Moore and W. D. Ross that the "good," the "right," or the
"just," are a priori givens. Only two theories of ethical
176
behavior in law appear valid, writes Felix Cohen:
(l) The theory that intrinsic goodness is relative, defin
able, and identical with a relation to an approving indi
vidual, and (2) the theory that intrinsic good is absolute,
undefinable, and equivalent in application to positive
pleasantness (the good life). In the shadow of this
"polarity,1 1 all ethical decisions are to be made. We must
rest in the uncertainty as a docta ignorantia, beyond the
22
polarity remains only ethical relativism.
It appears, therefore, that there are at least three
principle areas of agreement among modern intuitionists con
cerning the basis of moral authority. (l) The basis of
the legal "ought" in any society is not to be identified
with any given "is;" (2) no legal "ought" is authorita
tively valid unless it is experienced as an a priori given,
which may be demonstrated or generalized for all men with
in the form of a universally determined juristic law; and,
finally, (3) any other attempt to define legal authority
in an ultimate sense results eventually in some type of
reductionism. This reductionism has been characterized
Op
Felix Cohen, Ethical Systems, pp. 227-228.
177
by Professor Philip Blair Rice as the "Mountain Range
Effect," i.e., if the empiricist defines the intrinsically
moral as X, then one may ask, "Yes, but is this a moral
X?" In similar fashion, the mountain climber struggles to
the top of a ridge only to see another range looming before
him, ad infinitum. Likewise all empirical jurists struggle
with, yet never can subdue, normative expressions.
The empiricist, if his critics are right, is condemned
to an ever wilder debauch in the winter resort country
of meta-ethics, and forced to befuddle himself with
ever more heady stimulants, until finally he must col
lapse and be enveloped by the eternal snows.2 3
The crucial difference between Kelsen and the Cohens is in
the number of intuitional experiences which are available
to an individual who is seeking to demonstrate a jural
norm.
Kelsen is content with a single Grundnorm, a single
a priori. He writes simply, "One ought to obey the laws."
The Cohens however , accept a variety of intuitionally
apprehended givens, and each of these norms acts as a
legal sanction and demonstrates its value as such pragmat
23philip Blair Rice, On the Knowledge of Good and
Evil (New York, 1955), P. ^7.
178
ically. As Morris and Felix Cohen interpret the moral
basis of jural law, it is not merely a solitary Grundnorm,
but every proposition and statute in the entirety of posi
tive law is an instance of legal a priori application. The
intuitive ‘ 'ought' 1 is established by the continuous exercise
of judges who make moral legal decisions daily. For it is
the non-naturalistic intuitionist who has established an
absolute cleavage between value and fact, the normative and
the descriptive, the ethical and the natural. The intui-
tionists maintain that to characterize the existing object
as the "good," as the naturalists do, is beyond logical
defense, and the intuitionist writings are literally over-
whelmed by this insight.
CHAPTER VIII
INTUITIONISM: A CRITICAL ANALYSIS
It should be acknowledged from the outset that
Kelsen's theory of law Is an immensely important attempt to
answer the complex question concerning the relationship be
tween science and morality, and that a careful reading of
Kelsen's theory is imperative to all who are concerned with
this question. But because of the complexity of this
theory, I feel it necessary to divide the analysis which is
to follow into three parts. The first section deals with
Kelsen's approach to natural law. The second section con
siders his pure theory of law, and the third pertains to
his metaphysical assumptions. The first and second
sections, I am sure Kelsen would concede, are crucially in
volved In his analysis of Jurisprudence. I am equally
sure, however, that he would not acknowledge the latter
division as warranted.
Let us consider each of the three parts In the order
In which they have been mentioned.
179
180
I
Julius Stone writes:
The fact that Hans Kelsen*s first exposition of his
"pure science of law" was from a chair at the Univer
sity of Vienna in 1911, and that it came to full
flower in the post-war conditions of Europe, 1b an
important clue to understanding it.... Professor
Kelsen formulated his theory exactly a century after
the final promulgation of the Austrian Civil Code,
prepared between 1713 and 1811, which was still in
force in 1911. This code was mainly prepared at the
height of natural law influence, and curiously enough,
contemporaneously with Blackstone*s work in England.
It is interesting but not surprising to find this
analytical twentieth century continental jurist dis
playing a zealous hostility to natural law, entirely
reminiscent of that of the nineteenth century English
Bentham and Austin.
Stone’s observation indicates perhaps a partial explana
tion for Kelsen*s rejection of natural law. Kelsen's dis
trust of natural law theories appears to hearken back to
the absolutistic theories in which he was immersed. The
general rejection of what Kelsen calls metaphysical-
religious jurisprudence draws him more closely to positiv
ism. Natural law theorists constantly assume it is
possible to deduce from nature, i.e., from the nature of
man, certain rules which provide an adequate prescription
1
The Province and Function of law, pp. 91-92.
181
for human behavior. This non sequitur, Kelsen contends, is
the intellectual result of Jurists who, often unconscious
ly, seek to perpetuate an absolute authority— the authority
of a state, of a god, or of an organization. Kelsen con
tends that those who maintain this position do so specifi
cally to sustain the status quo. All the natural-law
teachers, he writes, to whom there is still attributed any
eminence, belong to the conservative trend (G. T., p. 417).
Der Charakter der Naturrechteslehre war im Allgemeinen
und der Haupstromung nach eln streng konservativer....
Das typische Bild, das die Naturrechtslehre von der
Rechtswelt llefert, sozusagen ihr reehtliches Weltbild
1st dieses: im Vordergrund das positive Recht,
wesentlich in unbestrlttener Geltung. Hinter dem
positiven Recht, dieses in e.igenartiger Welse
verdoppelnd, ein natiirliches Recht, als eine hohere,
die Quelle aller Geltung, alles sozialen Vertes
darstellende Ordnung, deren Funktion im Wesentlichen
die Rechtfertigung des positiven Rechtes 1st.
While it is usually true that natural law Jurists seek to
dress up their contentions in the guise of progressive re
volutionism, it is in fact quite the other way around; for
centuries natural law theory has proved its conservative
worth in defense of throne and altar.^
2
Hans Kelsen, Die phllosophlschen Grraidlagen der Nat-
urrechtslehre und des Rechtspositivismus (Charlottenburg,
1928), pp. 36-39. Hereafter cited as Haturreehtslehre.
^Naturrechtslehre, p. 40.
182
Kelsen Insists that the attempt of natural law Jurists
to smuggle surreptitiously Into law a norm which is based
upon seemingly secure and authoritative principles should
be exposed for what it is— an indefensible non sequitur.
Natural laws are essentially descriptive of the sequence of
cause and effect in an existing universe. There is no in
fraction of the law of gravitation or of Boyle’s law in
physical science. If the law is not continuously demon
strable, it is not to be accepted as a true or accurate law
of nature. It must be demonstrated that there Is a certain
uniform pull between masses, or a certain uniformity in the
volume of gases, or else the law Is quickly discarded.
Laws of the sciences describe relationships which exist.
Natural law theorists hold the optimistic opinion that
there Is a human law of nature which constitutes man's
social and Jural nature which has the same demonstrable
significance as scientific law. But Kelsen contends that
there can be no possible parallel between physical and
Jural law. We must never abandon the law forbidding lar
ceny because it is violated in the social order. Laws of
the state are not laws of nature, I.e., a law of Sein.
A law of the state is a law of Sollen. A ’ ’law" of nature
183
states that if £, then c[; a law in the Juristic sense tells
us that if £, then there "ought” to be
The essential consideration is that laws of the state
may remain valid whether £ follows p or not, and frequently
it is the case that does not follow p (W. J., p. 139).
The natural law doctrine presupposes that value is
immanent in reality and that this value is absolute,
or, what amounts to the same thing, that a divine
will is somehow inherent in nature. Only under the
natural law presupposition is it possible to maintain
the dogma that the law can be deduced from nature and
that this law is absolute Justice. (W. J., p. 141)
Kelsen*s criticism is certainly understandable and his re
action against the absolutistic tendencies in law theory
warrant intellectual sympathy. When the assumption is made
that the problem of Jural theory has been resolved if one
will merely avoid the pitfalls of secular relativism, it is
understandable why Kelsen finds the natural law doctrine so
offensive. The editor of the University of Notre Dame
Natural Law Institute Proceedings gives expression to this
judgment when he writes;
Secularism divorced government from God. Pragmatism
scorned "etherdal absolutes” as criteria of human law.
Positivism narrowed the "province of Jurisprudence" to
the study of man-made law alone. The Relativist said
"all concepts are relative." For materialism there
was "no significant difference between a man and a
baboon or a grain of sand." In our times, Nazis and
184
Communists have erected legal systems with such
"principles' 1 as premises. They showed a shocked
world only yesterday^the inhuman but completely
logical conclusions.
The implication of all this seems to be that natural law
theorists have somehow escaped the problems of relativism,
but such is not the case.
Nevertheless, Kelsen's dichotomy of physical and jural
5
law has proceeded too far. His ethical relativism has
made it impossible to entertain questions of "justice,"
and his insistence on a pure theory of law has so formal
ized the law that its applicability is highly dubious.
Natural law theories need not be as absolutistlc as he has
insisted that they are. Natural law theory properly con
ceived merely asserts that at least part of the law of
human culture is "discovered by man rather than made by
man." The criterion for the good and the just in law is to
be found, not in empirically ordered rules which are man-
made, but is rather to be found in the God-made or nature-
made physical order. As Aristotle tells us, true justice
^Edward P. Barrett, ed. (Notre Dame, 1953)* V.
1 5
^Also see Friedrich, p. 171.
185
Is to be found In p h y a l s It Is necessary that the law
have both a descriptive and a prescriptive aspect; for,
simultaneously, it makes a knowledge-claim and is an in
citement to an action or an attitude. There is little dif
ference in saying that, in general, the decrees of law are
normative judgment (with sanctions) containing a cognitive
statement with a prescriptive function, or saying that
these decrees are prescriptive expressions whose meanings
include a cognitive assertion resting on empirical
evidence. My contention is that law contains both elements,
and the burden of the concluding chapter is a defense of
this assertion.
II
A second division In Kelsenfs thought is what he calls
the pure theory of law. He writes that the pure theory of
law is constructed by the human will. It is essentially an
order of coercion. Its rules find their source in human
authority and have no quality of immediate self-evidence.
^Sir Ernest Barker, trans., Introduction to the Poli
tics of Aristotle (Oxford, 19^6), Chapter IV. Also note
Marcus Tullius Cicero, De re publica, De Leglbus, trans.
Clinton Walker Keyes (London, 1928).
186
Die Lehre, die den Zwang als wesentliches Merkmal des
Rechts erklart, 1st eine positlvlstische, sle bezieht
slch nur auf das positive Recht. (Naturrechtslehre,
p . 9)
Therefore, it must be recognized that the "ought” of posi
tive or pure law is only hypothetical (Naturrechtslehre,
P- 11).
So wie der Idee des Naturrechtes die absolute, so
entsprlcht der Idee des positiven Rechtes die bloss
hypothetlsch-relative Geltung seiner Norraen, das
heisst: dass seine Normen nur unter einer
Voraussetzung, unter der Annahme einer die oberste,
das Recht erzeugende Autoritat einsetzenden Grundnorm
gelten, deren Geltung selbst innerhalb der Sphare
des positiven Rechtes unbegrundet und unbegrundbar
bleibt. (Naturrechtslehre, p . 11)
The pure theory states that the "ought" of legal norms is
a condition prescribed by individuals and constitutions,
and the consequences of the law involve sanctions if the
constitutional norms are ignored. Thus, if one steals he
"ought" to be punished, if one does not make good on a tor
tious damage against another individual, then civil execu
tion ought to be issued against him, etc. Kelsen claims
that from a commonly agreed upon constitution, it is thus
possible to produce a science of law--a science which
describes relations and establishes debet and sanction.
Hence it is obvious, Kelsen writes, that the pure law
7
theory is dynamic rather than static;' and the only
possible validity of pure law is a single assumption; That
there is a basic norm which establishes the supreme, law-
creating authority. And this assumption lies beyond the
pure law itself. It is an assumption "deren Geltung selbst
innerhalb der Sphare des positiven Rechtes unbegriindet und
unbegrundbar bleibt" (Naturrechtslehre, p. 11).
Under no circumstances is it possible to unite natural
and positive law theories into a single theory of law, al
though such an endeavor is frequently undertaken by natural
law Jurists. Because positive law is dynamic, its princi
ples cannot be blended with natural law theory, which is
basically static. Positive law is an object of supple
accommodation, whereas natural law is essentially absolu-
tistic and, therefore, rigid.
Positivisraus und (erkenntnistheoretischer) Relativismus
gehoren ebenso zusammen, wie Naturrechtslehre und
(metaphysiseher) Absolutismus. (Naturrechtslehre,
P. 14)
The prescriptive force which the "pure theory of law"
7
For a discussion of this, note "A ’Dynamic1 Theory of
Natural Law," W. J., pp. 174 ff. Also note Naturrechts-
lehre, p. 146.
188
presents, Kelsen continues, follows from the basic norm
which has been assumed, and from a system of order which
has been derived from an intellectual operation which,
nevertheless, is dynamic In principle and which produces a
unified system of delegation. Positive law establishes not
a Just but a meaningful order, which lends itself to
rational Interpretation. In holding this position, Kelsen
attempts to reverse the criticism which Is customarily
brought against positive law theory, the criticism, namely,
that it is positive law which Is primarily static. It is
this freedom from absolutIstic natural law theories,
Kelsen asserts, which gives to positive law the capacity
for structural change. Theories of natural law operate
continually under principles of metaphysical design; and,
these metaphysical constructs force natural law Into static
and rigid formB.
However, I do not believe that Kelsen's claims for
positive law are historically sound, for, historically,
positive law theory has defended the principle of precedent
in law and, this principle, it may be argued, offers one
supreme advantage over other forms of law (such as equity).
It offers a system of precision which It Is possible to
189
maintain because precedent in law establishes and operates
within a code or set of rules for extended lengths of time.
The codes hold true for all men who fall under the suzer-
g
ainty of the law. An example is the current jural defense
which the South is using to press its case against the
United States Supreme Court. The South is insisting upon
the original positive meaning of the Constitution, and it
contends that the Supreme Court, instead of interpreting
the law as originally presented within the Constitution, is
attempting to introduce its own "sociological'1 interpreta
tions. These interpretations, in fact, do not explain the
law which prevails but seek to change the original meanings
of the law. The South seeks to maintain the stare decisis,
the positive law as given. We see here an historical
situation in which positive law is cast in the role, not
(as Kelsen contends) of dynamic law, but of static law.
Kelsen concludes that pure law is law which has been
created by constitutional procedure. It is a theory,
therefore, which endeavors to keep Itself free from meta-
Q
Salmond, "The Theory of Judicial Precedents,"
Richard A. Wasserstrom, The Judicial Decision (Stanford,
1961), Chapter 3.
190
physical assumption. It claims to construct a set of
orders which remain free from contradiction and intellec
tual stagnation. Pure law, Kelsen claims, is alert to the
demands of constitutional government, and the task of the
pure law jurist is as clear as that of an engineer with a
slide rule. It is my intention, however, to demonstrate
that Kelsen’s optimism concerning the metaphysical freedom
of his pure law theory is ill founded.
Ill
Although it is nearly impossible to make Kelsen admit
that in his legal analysis there exists a relationship be
tween metaphysics and the Grundnorm, the relationship
surely is there. Since Kelsen's epistemology is similar to
that of Kant, it is without question possible to find In
9
his thought some connection with Kant's metaphysics.
Kelsen insists that his "pure theory of law" must re
main free from all metaphysical dualisms. The philosophy
9
For a discussion of this recalcitrance in Kelsen,
note Friedrich, pp.. 171-172, William Ebenstein, Die rechts-
phllosophische Schule der Reinen Rechtslehre (Leipzig,
1936), and Franz Weyr, Rechtsphilosophle und Rechtswlssen-
schaft (Leipzig, 1921).
191
he wishes to present, he says, rejects metaphysical dual
isms because they are unscientific (Haturrechtalehre,
p. 6l). He admits, however, that he owes much to Kant.
Still, he rejects Kant's metaphysical dualism and argues
that Kant's analysis was moving toward a positivistic the
ory but did not quite reach it. Kant was the harbinger of
analytical accuracy. His thought has served the purpose
of demonstrating the inadequacy of natural law metaphysics.
He has shown that:
Die seelische Quelle, aus der alle metaphysische
Spekulation gespeist wird, die wunscherfullende
Phantasie, fliesst hier, wo der zu kritischem
Zweifel neigende Verstand vorherrscht, nur sparlich.
(Naturrechts1ehre, p. 63)
It is in the atmosphere of scientific analysis, which
Kant did so much to foster, that the principle of objecti
vity may emerge. But while most positivists acknowledge
their debt to Kant, they are quick to add that Kant's final
dualistic position is alien to their own conclusions. Yet,
it is interesting to notice that, although Kelsen agrees
that dualisms must be discarded, he does not actually re
ject the Kantian method. As a result, the dualism which he
so arduously seeks to demolish, remains. This becomes
apparent whenever Kelsen endeavors to justify the nature of
192
the Grundnorm. On some occasions, he admits that the
Grundnorm Is inadequate, and he appears to be content to
accept the predicament (Naturrechtslehre, p. 12). On other
occasions, however, he tries to offer significant reasons
for the Grundnorm, and even unconsciously suggests a meta
physical defense of It.
Kelsen*s hidden ontological dualism Is noticeable in
such passages as the following:
Die ausserordentliche Schwierigkelt, die es [die
GrundnormJ birgt, besteht in der— wie es scheint
unvermeidlichen— Antinomie eines notwendigertwelse
vorauszusetzenden Dualismus von Sein und Sollen,
Wirklicheit und Wert, und der nicht abzuweisenden
Anerkennung einer Inhaltlichen Beziehung zwischen
den belden--als beziehungslos vorausgesetzen—
Systemen.*^
Also, in his Haptprobleme der Staatsrechtslehre he says:
Die prinzlplelle Verschiedenheit beider Denkformen
lasst Sein und Sollen als zwei getrennte Welten
erscheinen.
Kelsen apparently desires to free the theory of law from
the confusions of social theory. In so doing he develops
an autonomous science of law. And yet, at the same time,
10
Bergmann and Zerby, citing Allgemeine Staatslehre
(Berlin, 1925), P. 19.
Bergmann and Zerby, citing Tubengin (1911), p. 8.
193
he rightfully understands the necessity of preserving the
meaning of "ought" or "duty," Which lies at the root of all
legal theory. But is it possible to insist upon the rigor
ous rejection of metaphysics and, at the very same moment,
defend the validity of the Grundnorm?
Irrespective of the fact that, by its nature, the
Grundnorm itself must convey to everyone its own intuitive
sense which is best described as one’s "duty," it is my
contention that, although Kelsen has sought rigorously to
free himself from any confirming principles for the Grund-
norm, he does, nevertheless, introduce surreptitiously
into his "pure theory of law" a metaphysical explanation
for jurisprudence. On closer scrutiny, this explanation
proves to be vaguely similar to the metaphysical interpre
tations of sociological jurisprudence. I think that it is
Kelsen1s sense of scientific confirmation which has
fostered this hidden metaphysical conclusion. Let me be
more explicit.
The initial difference between Kelsen1s normative
jurisprudence and many varieties of sociological jurispru
dence is the difference between a logical, or formal,
analysis of legal sentences and an empirical study of the
194
social context of the law. As has been pointed out ear
lier, it is Kelsen*s contention that the object of positive
science is "natural reality," whereas the object of Juris
prudence Is "legal reality" (W. J., p. 362). But Just
what Is "legal reality"? In Kelsen*s opinion it certainly
does not have ontological status; for this would prove to
be completely Incompatible with his earlier rejection of
metaphysics as an absolute and would be incongruous with
his posltlvistic assertions. He is not prepared to postu
late a system of Intrinsic values. Value Is not Inherent
In the object Judged valuable (W. J., p. 140). Nor is
Kelsen content to resolve the problem by any of the usual
linguistic devices common to the contemporary language
philosophers.
What Kelsen attempts to do is to define his basic con
cepts in terms of the very kinds of facts, psychological
and sociological, from which he had tried to disengage
12
them. Notice, for example, his analysis of the normative.
12See Gustav Bergmann, "Review of the General Theory
of Law and State of Hans Kelsen," Ethics, 57*213-215, April
1947. Edwin N. Garland (Rev. General Theory of Law and
State), The Journal of Philosophy, 43*712-722, December
1946. Gewirth, nThe Quest for Specificity In Jurispru
dence ."
195
The nature of the normative, he writes, may be understood
if one considers the relationship between an act and its
meaning. "A legal norm is the specific meaning of an act
which, because of this meaning, i3 called a norm-creating
act" (W. J., p. 214). What is the nature of this
"meaning"?
Meaning, according to Kelsen, is a relationship which
exists between the norm-creating act and the norm created
by this act.
A kind of parallelism obtains which is similar to
that between physiological processes in the brain and
psychological phenomena, as, for instance, the rela
tionship which endures between thoughts and feelings.
The norm is not possible without the creating act;
but the two are toto genere different entities.
(W. J., p. 215)
Again, Kelsen writes:
The acts by which the norms of a positive normative
system are created are always facts manifested in the
external world, perceptible to the senses.... The
norm is the specific meaning of the fact, and this
meaning, not perceptible by our senses, is the result
of an interpretation. To interpret the meaning of a
fact as a norm is possible only under the condition
that we presuppose another norm conferring upon this
fact the quality of a norm creating fact, but this
other norm, in the last analysis, cannot be a positive
norm...but rather a norm, the validity of which is
presupposed in our mind. (W. J., p. 359)
From what Kelsen has written, is it not possible to
196
conclude that these interpretations and "presuppositions"
in our mind are the direct result of psychological
phenomena? If the resulting conclusion is not the case,
then what is the "cause" of the norm-creating act? In
other words, how is it possible for Kelsen to reconcile his
"realism" and, at the same time, continue to insist upon a
"nonfactual" normative science, viz, the law?
A similar difficulty attends the Grundnorm, for
Kelsen*s insistence upon the nonhistorical character of the
Grundnorm forces him to Interpret the Grundnorm as almost a
purely formal principal (W. J., p. 360). However, he is
not quite prepared to adopt the formal principle for legal
systems per se, for, after all, if one is limited to the
purely formal character of the legal system, one will have
to decline to acknowledge the psychological and sociologi
cal influence upon existing legal institutions. To refuse
to acknowledge the sociological influence in jurisprudence
is to abandon any hope of presenting a scientific explana
tion of "legal reality." Yet, a scientific authentication
of jural law is essential to all of Kelsen's considerations.
Kelsen suggests a further idea which points up my
objection more precisely. He writes that normative juris
197
prudence deals with the validity of the law, and sociolo
gical Jurisprudence deals with its efficacy. Validity and
efficacy, he writes, are two different aspects of the law
which must always be kept clearly Separated. At the same
time, however, they stand in a definite relation to each
other. There exists between normative and sociological
Jurisprudence an important connection (W. J., pp. 269-270).
A law is efficacious if people obey it; but a law is valid
if it carries with it a sense of obligation.
If people accept the law and feel generally that it
"ought" to be obeyed, then it "exists;" and if it exists,
it is valid. "The existence of a law is its validity"
(tf. J., p. 21^). So far, the two elements, the effective
ness and the validity of the law, are strictly separated
from each other. But if we should ask, Why do people
feel that they "ought" to obey the law, Kelsen's answer is
not as dualistic as one would suppose, for validity no
longer remains what, in fact, exists as an "ought" but be
comes curiously combined with what "is." The Constitution
[law3, Kelsen writes,
is valid only if the total legal order, according to
the general basic norm, is effective. The effective
ness of the legal order as a whole is thus a condi-
198
tlon for the validity of each separate norm belonging
to the order. (W. J., p. 225)
The existence of a positive legal norm accordingly
presupposes: (l) The effectiveness of the total
legal order to which the norm belongs; (2) the presence
of a fact "creating" the norm; and (3) the absence
of any norm "annulling^1 it. (W. J., p. 225)
Hence, if a set of norms in a particular state Is ef
fective, then it is valid; and if it is valid, then its
validity is not only derived from its "oughtness" but also
from its "effectiveness*" The two elements appear to over
lap or fuse together.
It is now possible to draw the following conclusions:
Insofar as law is a system of norms, it represents an in
ternal formal logic— a logic which, in Kel3en's opinion, is
not common to ethical systems. Jurisprudence has a unique
formal quality of logical relationships, but a quality di
vested of ontological status. Leon Petrazhltskli has de
scribed this quality in the following words:
A moral relation between A and B implies that
A is under obligation to himself to behave in a
certain way with respect to B without B having the
converse right to demand such behaSrior from A.
Legal relations, on the other hand, are bilateral
because in them there is no such thing as A having
an obligation to perform in a certain way with
199
respect to B without B having the converse right to
such performance on the part of A.1^
Kelsen is convinced that this form of legal uniqueness
enables him to sustain a legal "ought." That is to say,
the legal "ought" is a necessary element of a logically
significant jural system. But is it not the case that dis
tinction between legal and moral "oughts" is principally
chimerical? Does not the moral ought also entitle B to
expect reciprocity from A, even as reciprocity is demanded
in the jural system? Kelsen does not concede to the moral
"ought" that cognitive and analyzable status which he grants
to the legal "ought." It is my contention that the
uniqueness of the "ought" which Kelsen has clearly demon
strated to be effective in jural judgments demands ontolo
gical status if it is to maintain its role of authority in
legal decisions. Kelsen’s posltivistic inclination, unfor
tunately, does not allow ontological concessions on his
part— a fact which Is quite apparent when one analyzes his
position on ethical theory, which is a complete emotlvlsm.
• ^Law and Morality, trans. Hugh W. Babb (Cambridge,
1955). Note 20th Century Legal Philosophy Series, III,
with introduction by H. S. Timasheff.
CHAPTER IX
MORAL AUTHORITY AND THE LAW
The devotion of Antigone to religious authority and
of Creon to political authority'1 ' illustrates the common
struggle of all men in quest of foundations for their moral
claims.
Man seeks to point beyond his own private decisions to
some ultimate reason or "proof," which authenticates his
decisions and gives final validity to the claim that these
decisions are to be universalized. The very language he
uses implies as much. Margaret Macdonald, for example,
has noted that ethical judgments are usually couched in
indicative rather than in imperative modes. To her this
suggests that those who utter ethical judgments wish to
impress upon the hearer that these judgments represent an
authority outside of, and beyond, the transmitter of the
^See Introduction.
200
201
judgment. They consider it important to convince the
hearer that the one who is uttering the judgment has the
"right" to do so.2
The "reasons" given by various authors in support of
our judgments vary from "private feelings" to apparently
publicly verifiable facts. But even in the case of our
"private feelings" the attempt is usually made to charac
terize these feelings as something common to all men.
In the early society, authority seems to have been
primarily "external," as publicly verifiable, to the
3
speaker. Whereas the validation of moral judgments in
modern societies frequently has been "internalized," or re-
4
strieted to private feelings.
This modern bent toward the internalization of jural
sanctions has been most effectively demonstrated in the
Margaret Macdonald, "Ethics and Ceremonial Uses of
Language," in Black, ed., pp. 212-213.
o
Sir Henry Sumner Maine, Ancient Law (London, 1906),
pp. 1-6..
^Moore, Prlncipla Ethica, pp. 10-14.
202
the efforts of the eraotivists. The emotitfists are content
to say, " I feel so and so about this particular social
action; would that you might feel this way also." In the
main, the emotivists have rejected the a priori of human
nature which David Hume mentions, but have taken their cue
from his acknowledged assertion that "morality is deter
mined by sentiment." I have tried to show that positivis-
tic Jurisprudence is not an adequate basis for Jural
*
Judgments (Chapter III), That emotive interpretations lead
to a pluralism which, in the final analysis, makes all
Jural Judgments morally indefensible. Stare decisis be-
comes the order of law, and whatever authoritative source
this pluralism may invoke, its ultimate enforcement is
limited almost entirely to sheer power of the majority.
H. D. Aiken has written^ that when the emotivist maintains
the emotive schema, "I approve of this; please do so also,"
he does not adequately represent his intentions. For by
Stevenson's own admission, the meaning of a term, being a
dispositional predicate shared by the users of the lan-
-*"The Authority of Moral Judgments," Philosophy and
Phenomenological Research, 12:513-525* 3-952.
203
guage, is an interpersonal rule which is binding upon the
individual only because it is binding upon all. This is
the case, not simply because it happens to coincide with
some half-aroused private emotion which one happens to
feel. It is rather that the Individual being as a social
ly conditioned organism, finds the rules of society al
ready written into his own nervous system as conditional
patterns of response (Aiken). Even the emotivists, there
fore, if they desire to be free from the accusation that
they are completely nihilistic, find it necessary to make
an appeal to external or public validation. And in their
theory, external validation is demonstrated cognitively in
much the same way as scientific "facts" are cognitively
demonstrated. That is to say, some type of social and im
personal foundation, however vaguely conceived, still
attaches to normative Jural Judgments.
A second, but less severe, type of internalization in
moral authority is the effort of the intuitionists. The
intuitionists are far less negatory than the emotivsts.
G. E. Moore, for example, accepting the Kantian thesis of
the dissimilarity between facts and morals, demonstrates
the inadequacy of hedonic explanations. He points out the
204
impossibility of reducing ethical assertions to "natural
premises," natural premises being "that which is the sub
ject matter of the natural sciences and also of psycholo-
gy." Terms such as "goodness" and "justice," are non
natural, and therefore unanalyzable, in the same sense as
the quality yellow is unanalyzable. And what proves true
for such primary qualities as yellow also holds true for
such primary terms as "goodness" or "justice." Comprehen
sion of what is "good" or "just" is, as in the case of the
quality, yellow, to be apprehended internally, and the
authority for what is "just" resides in the individual.
This authority, however, should not be regarded as being
different in every individual, for there is common intui
tional agreement on the question of justice; and it is this
common agreement which externalizes moral authority. That
is to say, moral authority is externalized in the sense
that every individual may apprehend a common intuited jus
tice and, as a rational and responsible being apprehending
this justice, will desire to operate within its. structure,
liftiile the early Moore and A. C. Ewing maintained this non-
naturalistic character of ethical Judgments, they also
^Moore, Principla Ethica, p. 40.
205
Insisted upon the objectivity of morality at a "mental"
a
level of reality. Apparently only the boorish fail to
recognize what is "good" or "Just." However, after having
routed all naturalistically conceived externalizations of
authority, Moore settled down to the task of applying
"goodness" and "Justice" to particular occurrences, only to
find so much disagreement among intuitionists themselves
that it suggested to him the impossibility of arriving at
any common ground on questions of value. He found so much
disagreement, in fact, that, in hi3 later years, he con
ceded to Stevenson an inclination to accept the emotive
7
theory.1 Ewing, on the other hand, has moved in the other
direction, i.e., he has moved toward empiricism--toward
q
what he has defined as "a middle way in ethics."
In some respects, Kelsen's intuitional theory is even
more enigmatic than is Moore's. Kelsen concurs with
Moore's attack upon the "naturalistic fallacy," but Kelsen
adds to this attack his rejection of all metaphysical
^The Philosophy of Q. E. Moore, ed. Paul Arthur
Schilpp (Evanston, 1942), p. 551*
Q
Ewing, Second Thoughts, pp. 33-3^.
206
speculations, conceiving such speculations as tools for
authoritarian institutions. According to Kelsen, it is
impossible to anchor law on external moral authority, and
this for two reasons: (l) Jural law contains within it
self a principle of "oughtness." This “ought” of jural
law can never be defined by taking recourse to "objects"
external to itself. The imperative which is necessary to
jural judgments, if such judgments are to be considered
legally valid, is always limited to the legal systems.
(2) The "jural ought" is not to be confused with a "moral
ought." The "Jural ought" is necessary to the formal
character of jural science. The "moral ought" is an ethi
cal judgment, and ethical judgments are never to be intro
duced into the formal legal structure. Therefore, Kelsen
insists, to raise the question concerning the basis of
moral authority in modern Jurisprudence is a pseudo-
question. There is no moral authority for jurisprudence.
There can only be legal authority, the authority of legal
consistency, i.e., that which is necessary to make Jural
law scientifically cogent and logically significant. We
should not make the mistake of assuming that scientific and
logical cogency entails ontological status.
We may conclude that modern Intuitional theories have
strayed far from the original reflections of Kant. The
"ought" which is mandatory for all moral considerations
was, for Kant, a metaphysical ought; it was in some sense
metaphysically "external" (transcendental) to the indivi
dual. The maxims of the categorical imperative which de
fine the "ought" in Kant's theory are ontologieally
significant. It is primarily because of these metaphysical
assumptions, that legal positivists have rejected Kant. It
is their contention that his moral ontology is Just another
form of the externalized "natural law;" and it is natural
law in two respects: First, Kant agrees with the followers
of the classical natural law doctrines in denying that
ethical norms are relative social conventions. Secondly,
his positive theory that the "ought" of ethics and juris
prudence is an a priori presupposition of anyone’s moral or
legal decisions, is closely allied to the classical
"natural law" doctrine, i.e., to the doctrine that human
nature contains an "external" foundation for jural judg
ments as a natural property of the human animal. It is
essentially this ontological imperative which I shall try
to demonstrate as worth preserving in any analysis of
208
Jural law.
In some respects there is always an external element
in questions of value which gives confirmation and author-
9
ity to individuals as they make value decisions. This
external element of valuation applies also to jurispru
dence, and it Is the "naturalists'" attempt to describe
this external element which has led frequently to the com
mon naturalistic fallacy. The question which is before us
is whether it is possible to define properly the Internal
element In jural judgments without, at the same time, de
stroying the external principles which contain the source
of objective moral authority. I shall contend that value
judgments agree with ordinary judgments in depending for
their validity upon their relation to the factual nature of
the real. Although they are not statements of empirical
facts, they are made "true," valid, correct, or rational,
by these facts. In an important sense, when we seek to
determine whether or not an action Is "right" or "just," we
must have Information as to what the action and Its cir
cumstances and likely consequences are. If the action Is
^Macdonald, In Black, ed. Philosophical Analysis.
209
right, it must have factual authenticity. That is to say,
it must be related to man's physical, social, and spiritual
needs.
Subjectivism overlooks the fact that, when we utter
ethical Judgments, we express not merely conative attitudes
but assert also that the ethical judgments are to be justi
fied by the facts. By virtue of this claim ethical Judg
ments have a cognitive function.
For example, while it is admittedly true that Kant
does not accept social well-being as the foundation of
morality, moral well-being is, nevertheless, an indispens
able determinant of morality within his system. This fact
is clearly demonstrated in the second formulation of the
categorical imperative in which Kant prescribes that human
beings should always be taken as ends and not merely as
means.
Paul Tillich makes a distinction which may be helpful
in understanding the issue.^ He says that there are three
types of authority which influence the individual. These
are, respectively, autonomy, heteronomy, and theonomy.
1QSystematic Theology, I (Chicago, 1956), pp. 83-84.
210
According to the autonomous view, authority is wholly in
ternal or immanent. According to the heteronomous view,
the authority is wholly external to, or transcendent of,
the individual. Theonomy, finally, is a combination of
autonomy and heteronomy— a combination, we may recall,
which Kelsen denies is possible.
Responsible Jural law seeks to validate itself both in
the heteronomous and the autonomous sense. Society acts as
a heteronomous principle which exerts a pull rather than a
push on Jural theory— a pull which is partly brought about
by social conditioning. However, there is also an internal
or immanental element within jurisprudence. This internal
element sorts the claims of sociological stimuli in such a
manner as to choose "freely" the "better" jural laws. This
"internalization" may best be described as the formal prin
ciples of law as rationally constructed in the thinking
individual. The external sociological elements are always
screened by rational reflection. Stating it in another
manner, adequate jurisprudence demands the blending of
Kant's internalized autonomous "ought" and naturalism's ex
ternalized heteronomous social "is." If jural law dis
counts the Kantian "ought," it has no way to preserve the
211
Imperative; if It rejects the naturalistic "Is,” it has no
external authority and suffers the possibility of drifting
into an emotive relativism.
In view of such consequences, let us now consider the
possibility of unifying heteronomy and autonomy in such a
way as to preserve the authority and the imperative in
jurisprudence. To do this, we must demonstrate, first, the
validity of externalized sociological jurisprudence, and,
secondly, we must reconsider Kant's categorical imperative
in the light of our naturalistic concessions.
I
Northrop has introduced a methodological system for
sociological measurement which I find useful in presenting
11
value considerations at the empirical level; I shall
call it "Normative System A." This system is cognitive and
contains the following three non-normative premises:
(1) Any radically empirically known person is not
merely his differentiated immediately experienced
self, which varies from one person to another and
■^The method he has introduced on three separate oc
casions: (l) "The Scientific Method for Determining the
Correct Ends of Social Action," Social Science, 22:226,
July 19^7; (2) The Logic of the Sciences and the Humanities,
Chapter XII; (3) Complexity, Chapter XXII.
212
perishes, but also his all-embracing indeterminate
field consciousness self. (Complexity, p. 275)
This premise has specific reference to the patterns of
understanding which men acquire— patterns developed through
the environment in which they have been spawned, i.e., the
constructed neural nets (universals) which are instrumental
12
in their development as persons.
(2) The scientifically known person, like any other
scientifically known individual entity, is also a
directly unobservable, theoretically known indi
vidual which is an instance of an lmageless formal
and constitutively constructed and procedurally
defined determinate universal law. (Complexity,
P. 275)
To understand in which direction Northrop is moving in this
claim, we must realize that he rejects what he calls naive
realism, i.e., he rejects reifying the theoretically con
tributed laws of scientific language into supposedly
concrete, externally existing objects. He insists that
incipient within all positivistic systems is this hyposta-
tized assumption concerning "facts." Also it is to be
noted that, in this premise, Northrop assumes the thesis
that all human beings--and all other natural objects, for
12See Page 113.
213
that matter--In their intrinsic nature (as distinct from
their accidental sensuous esse est perclpi effects upon the
observer) are to be defined in a formal universal sense as
a formal universal law. Moreover, it is necessary that we
remain aware of the fact that a law must always have the
aspects of equality and identity in order to be an ade
quate law. However, the concepts of equality and identity
can be adequately defended only as law in an epistemlc for-
13
mal sense, not in a legal sense. And, finally:
(3) The complete first order factual cognitive
(i.e., scientifically known) person is the epistemic
and ontological correlation of the two components
of personality specified in Premises (l) and (2).
Premise (2) assumes the epistemological thesis that
there are imageless concepts by postulation of a logically
realistic epistemology of first-order facts, as well as the
nominallstic concepts of intuition of a radically empirical
epistemology. It is this premise which demands the most
complete demonstration. Therefore, when applying Premise ;
(2) of Normative System A to jural law, the following
criterion, formulated by Northrop, is essential:
■^See Page 132.
214
Given any object of intrinsic (goal value as distinct
from instrumental value) normative Judgment x, and any
substantive content £ i of either personal conduct or the
living or positive law, then for any person p to say that
s of x is legally Just, is equivalent to stating the
following four requirements:
(i) x is in accord with a concept by postulation con
tractually constructed, i.e., it is in accord with deter
minate law L, which is universal in the sense that it holds
for all persons. In the language of symbolic logic, L is
preceded by the universal quantifier (p.), where (p) means
"for every person whatever."
(ii) Content s^ of the universal law (,p)L is such
that, If its substantive content s^ confers specific rights,
privileges, and duties upon one person or one group, then
any other person or group of persons whatever must enjoy
the same specific intrinsic normative rights, privileges,
and duties.
(ill) Being postulationally and contractually con
structed, and hence hypothetical, the validity of any (p)L
In which (p)£ must rest on free implicit or explicit con
sent of the parties concerned.
215
(lv) The concepts of universal law are formal Image-
less postulations of a logical (as over against a naive)
realistic epistemology.
The method prescribed for defending the "scientific"
authenticity of Normative System A is to compare its re
spective cognitive assumptions, x^, R^, y^, with
natural science's first-order postulates x R y z _ . Any
normative theory is false which is either self-contra
dictory or incompatible with the natural scientist1s
verified theory of first-order facts.
If the normative theory proves to be in formal agree
ment with the first-order postulates, then we have a
relatively adequate "factual" normative theory, designated
x R y z, should not be assumed, however,
Northrop continues, that this procedure precludes meta
physical considerations. As was suggested earlier, under
this system metaphysical postulates are not to be consid
ered unscientific. The relationship between first- and
second-order facts, however, is to be understood as an
epistemic correlation, i.e., as a relation between concept
ual postulation and intuitive data. To go back briefly to
an earlier analysis: It may be remembered that first-order
216
facts are to be verified by the concepts of Intuition of a
radically empirical (nomlnalistic) epistemology in epls-
temic correlation with the formally constructed, universal
ly quantified laws and scientific objects of a concept by
postulation, i.e., in conformity with an axiomatically con
structed epistemology.
I am convinced that Northrop1s conclusions serve to
meet the naturalistic need for extemalization, and that
his conclusions provide a basis for "true" legal theory--
true at the correspondence level. Although there is good
reason for rejecting the correspondence theory of truth as
14
inadequate, its strong point is its insistence that the
truth of a judgment Is dependent upon reality. On this
point, other theories of truth frequently fail to give
complete satisfaction.
The jural law is a principle, therefore, which is con
structed by society with the Intention of establishing
order; but the order is, in some degree, in accord with
what the society understands to be just. Jural law is the
14
For an analysis of the inadequacy of the correspon
dence theory of truth, see W. H. Werkmelster, The Basis and
Structure of Knowledge (New York, 1948), pp. 136-137. r_’
217
attempt to formulate an equitable relationship of order
between individuals.
However, the crucial problem in jurisprudence is a
defense of the "oughtness" of justice; that is, the crucial
problem is: Is it possible to validate the concept of
justice? Thus, contrary to Kelsen1s conclusion, it is the
question of the law's relationship to justice which gives
the law its prescriptive and, more Importantly, Its
imperative force. Northrop's system, although functionally
valid at what Kant has called the prudential level, lends
Itself only partly to a resolution of the legal problem.
This limited solution may be schematized as follows: Let
c _ represent any given law, let J stand for principles
defined as being just within any given society, and let
x R jr z be a factual normative theory. Just legal infer
ence would then have the syllogistic form:
"c_ is J" s "c has x R y zn
"This c^ has x R jr z ? '
"Therefore this c has J"
The minor premise is established by empirical demon
stration. This demonstration involves the acceptance of
Northrop's Premise (l), Premise (2) plus requirements (i),
218
(11), (ill), (iv), and Premise (3). The conclusion follows
syllogistically but Is itself an empirical statement, since
it rests upon an empirical observation stated in the minor
premise. However, the major premise resists any final
authorization. Nothing in the major premise itself demon
strates the validity of this premise. It is precisely at
this point that the imperative significance of the Jural
proposition falls, and it is here that disagreement arises
between my interpretation and the one presented by Northrop.
Northrop may assume that the internal consistency of the
formalized major premise is all the verification which is
necessary to establish its Justification. I must disagree
with this assumption, for the Justification of the major
premise involves a further step— a step not adequately de
fended by Northrop. The verification of the major premise
depends upon a verification of the "oughtness" of the
major premise. And this means that "c is J" =
"c_ has x R £ z" is, in a specific sense, beyond empirical
verification.
Professor Northrop is saying, in effect, that a Jural
law is "Just," and therefore normative, because its norma
tive claims have a logical relation to "true" scientific
219
"factsand that the jural premise applies to all Indivi
duals , even as first-order facts apply (theoretically) to
all Instances of a natural scientific law. For example, if
the law prescribes that all vehicles traveling in the same
direction must drive on one side of the street, while all
vehicles proceeding in the opposite direction must use the
other side of the street, then we may claim that the law is
just and normatively obligatory because, first, the jural
requirement aligns itself with first-order facts, i.e., the
chance of collision is greatly increased if this law is
disregarded, and, secondly, the law is to be applied as a
universal principle to all who would use the street in
question. But, as I have suggested before, the complete
normative element has not been demonstrated, for, in fact,
there is throughout Northrop's discussion a common a priori
assumption. This is a presupposition which he has not
formulated. If it were formulated, it would probably take
the form of a consequentialist, or hedonic, principle, such
as: The just act will produce the greatest good and the
least evil; or: The just act will produce the greatest
pleasure and the least pain. And this primary supposition,
whatever it might be, needs Justification if the jural
220
imperative is to be preserved. In other words, Northrop
confuses the categorical with the hypothetical imperative
and, therefore, reduces the normative to the simple
"isnesa" of experience— in this case, however, to an
"isness" of first-order rather than second-order facts.
Perhaps he has escaped sociological relativity— that which
he refers to as the "culturalistic fallacy"— but he has not
escaped the "scientific fallacy," i.e., he has not escaped
the assumption that a principle which has been scientifi
cally demonstrated has, of necessity, been normatively
validated.
I shall contend that moral principles in jurisprudence
will be Justified by essentially three methods:
(a) Genetic necessity, (b) pragmatic Involvement, and
(c) prehensive cognition. I shall consider each in order.
' H(a)
Frequently attempts are made to justify the normative
In human experience by appealing to human nature; and to
some degree I find sympathy with this procedure. I inter
pret Leibniz's reply to Locke's criticism of Innate ideas
as taking essentially this position. In the New Essays on
221
the Human Understanding Leibniz makes reference to the law
of God which is written in the heart--a law which our
15
senses do not give us but which we carry within us. Al
though it is true that cortemporary empiricism has rejected
rationalistic methodology and transcendent metaphysics, it
is nevertheless also true that naturalism has been forced
continually to come to terms with the notion that our most
general presuppositions are based at least in part upon our
ultimate structure as thinking, feeling, and acting beings.
Some empiricists, therefore, are prepared to admit that
man is by nature a normative animal, and that it is an
a priori "intuition" which enables us to realize this fact.
The normative, and therefore the imperative, is an existen
tial fact and an existential necessity. Under these cir
cumstances, however, one cannot say, in the usual manner,
"You ought to seek values." One must rather say, "You do
(by nature) seek values." Hence, to say that men seek
values, such as justice for example, is to say that the
need for justice is prescribed by the iron necessity of our
• L5 See Page 139 f.'
222
nature.1^ Therefore the possibility of choice Is not a
live option. However inadequate this mode may seem, it
appears to be the only explanation of "oughtness" which is
not alien to the nature of some naturalistic philosophers.
As William James writes, this type of naturalist is one
...who seems to think that any conclusion must be
very scientific if arguments in favor of it are all
derived from twitching of the frogs' legs, especially
if the frogs were decapitated . - * - 7
However, when man is defined as a value-ridden animal, in
the behavioristic sense, the imperative which is the mean
ing of the “ought" becomes unnecessarily truncated. Thus,
we must conclude that basing our notion of justice upon
the generic structure common to human beings still leaves
the imperative quality of the "ought” significantly unre
solved. Unfortunately, a congenital ought almost entirely
preempts the ought of its imperative significance, as Kant
-j f Z
I do not intend to characterize the empiricist as
one who sees the principle of justice as a pristine element
in the nature of the human organism. Naturally any analysis
of Justice would involve, for the naturalist, a thorough
discussion of the conative impulses, that is, the urges,
drives, etc., to describe adequately the finally developed
concept of justice in man.
^R. B. Perry, Thought and Character of William James
(Boston, 1935), p. 30.
223
Insists the ought implies the capacity to choose either to
perform or not to perform an act. Professor Werkmeister
cautions us:
If the (physical) principles are set forth a3 deter
mining or governing the whole of reality, serious
difficulties (the difficulties inherent in natural
istic reductionism) arise, for there are aspects of
human existence— such as consciousness, perception,
insight, and logical reasoning as well as valuations
and aesthetic appreciations and the moral ought--which
are hardly amenable to an interpretation In terms of
physics and chemistry, or in terms of physiology for
that matter. To refuse to admit In the light of such
facts that these are aspects of reality which lie
outside the framework of the broad principles of the
physical sciences Is but to reveal a prejudice In
favor of the physical sciences and to betray a lack^g
of objectivity In the most profound sense possible.
However, I am not prepared to abandon this generic norm
entirely, because this norm does possess what might be
called an elemental prescriptive force. It suggests a
primitive form of valuation: Man as an unstable, yet
value-driven, creature.
I cannot acquiesce entirely in the non-naturalist's
claim that there is an absolute cleavage between the value
and the fact, the normative and the descriptive, the
18
"Theory Construction and the Problem of Objectivity,"
Symposium on Sociological Theory, ed. Llewellyn Gross
(Evanston, 1959), ppT 506-567.
22k
ethical and the natural. The non-naturalist sees quite
clearly and correctly that the normative Judgment is some
thing more than a mere characterization of an existing
object, but an extreme bifurcation of fact and value appears
to me to be needlessly restrictive. In fact, such a claim
brings all analysis to a halt. By'their very system, the
non-naturalists are absolved from the responsibility of
19
accounting for their moral demands.
As Philip Blair Rice maintains:
A genetic explanation Is not identical with a Justi
fication either in ethics or in logic; yet we have a
right to be suspicious of any Justification that in
volves factors whose genesis is unintelligible or
which are described in such a way that, like non
natural properties, they cannot be conceived as having
originated at all, except by an ad hoc miracle.
(p. 183)
What the genetic explanation provides is the sugges
tion that moral rules crystallize slowly out of the
experience of the developing race. Hence, when we speak of
the moral consciousness in man, we should have before our
minds a type of "Gestalt" compounded of physiological and
subconscious realms of man's being with that of his
■^Ewing in Second Thoughts is very conscious of this
basic failing in his original theme. Note p. 50.
225
"reasonable obligatory consciousness." But it is man as
the reasonable conscious being who experiences the phenom
enal sense of moral compulsion, "Ich kann nicht anders."
This is one source of the Kantian "ought/1 the basis of
the free moral choice. Erwin Schrodinger speaks of this
phenomenon thus:
I feel as unable as anybody else to explain the
"shall" of Kant's imperative. The ethical in its
simplest general form (be unselfish!) is plainly a
fact, it is there, it is agreed upon even by the
vast majority of those who do not very often keep it.
I regard its puzzling existence as an indication of
our being in the beginning of a biological trans
formation from an egoistic to an altruistic general
attitude, of man being about to become an animal
social. Q
11(b)
However, generic justification for normative asser
tions is inextricably linked to pragmatic involvement,
i.e., to justification by involvement or commitment.
Genetic justification is an extremely artificial process,
for the individual must stand outside the process in order
to observe the process, and existentially this is never
possible. Justification at the second level of pragmatic
2QMlnd and Matter (Cambridge, 1958), p. 13.
226
involvement occurs when we are caught up in the normative
process and participate in it. The pragmatic level of
justification is shaped in the social situation. It is
prospective as well as retrospective. We frequently iden
tify this pragmatic involvement with the moral conscious
ness of "reasonable" men. Although I have called this
principle pragmatic, the name does not connote what is
frequently implied in pragmatic theories, viz, it does not
connote some type of crude functionalism which Incorporates
action but never thought. The pragmatic involvement of
which I speak is a plastic principle within our experience,
and we remain always a normative being subject to
continuous Bildung.
The more specific maxims and codes of legal systems
are relative to our culture, and our own pragmatic involve
ments play an important role in the formation of these
"laws." However, in pragmatic involvement, we also assume
a direction while we are in the process of action. The
fact is that moral decisions are never made by standing
off and describing or explaining the direction they should
take before the direction is taken. Moral decisions are
always made in involvement in the "existential moment" and
227
contain both rational and reflexive conditioners. There is
t
both a voluntary and an involuntary direction to our moral
commitments, and the structure of these commitments springs
from human nature as a conditioned agent in interaction
with the human situation. This structure is more or less
plastic, but the plasticity is essentially an amorphous
configuration. Radically novel forms are always possible,
and are frequently the case.
I do not intend to imply that individuals are simply
autonomically driven organisms. On the contrary, indivi
duals operate at a reflective level of experience, and
their reflective experience always influences their moral
decisions. That is to say, the acquired knowledge which
societies and individuals have obtained concerning the
human situation always plays a substantial part in moral
decisions. But these decisions are never completely com
prehensive and completely precise. They are always subject
to change. Their cultural constancy, however, is frequent
ly referred to as our "second nature." This "second
nature" is one In which our congenital make-up and the
formative Influence of experience are compounded. We might
call it "conscience," but we may not donaider our
228
"conscience" as our guide in moral and legal decisions
until we introduce one more principle confirmatory to our
normative judgments--one more external principle of
authority.
11(e)
Before considering specifically the third type of
moral authority, that which I shall call prehensive cogni
tion, I desire to return to the subordinate question con
cerning the naturalistic fallacy.
If naturalism holds that a normative statement can be
inferred, deductively or inductively, from non-normative
premises alone, It Is clearly untenable. It Is logically
impossible to get more into a deductive conclusion than
there is in the premises. It Is also logically Impossible
to get more into an inductive conclusion than is required
by the inductive leap from the less to the more general.
The fallacious method of naturalism, however, envisions a
Jump from one type of theory to a radically different type.
Conceding, then, that the approach of naturalists to ethi
cal theory does commit a logical fallacy, let us attempt
to understand the reason why naturalists persist in
handling ethical questions as they do, thereby exposing
229
themselves continually to the possibility of criticism
here indicated.
In order to deal adequately with the question, it is
necessary to digress briefly from moral theory and to turn
to the general theory of truth. Two propositions, I
contend, must be established. First, whether a judgment is
true or false always depends, in some manner, on its rela
tion to a reality which is not itself a set of Judgments
or propositions. In this sense, the correspondence theory
appears to me to be true. Secondly, it is unreasonable to
hold the correspondence theory in a sense which implies an
exact correlation between true judgments or propositions
and facts as elements in the objectively real world to
which the judgments or propositions refer. Concerning
this second proposition, I contend that the correspondence
theory is impossible for a number of reasons. To begin
with, a notion of a copy theory is an absurd metaphor which
suggests that the phenomena are split neatly into two
parts— terms and reality. But more than this, it is un
reasonable to suppose that there exists a separate fact for
every true Judgment which can be made. And, of course, the
tremendous problem of defining dispositional predicates
230
within the correspondence theory of truth is familiar to
all.
However, it is possible to conclude from the preceding
two assertions that all true propositions "correspond.”
But X find this definition so "wide” as to make the word
"correspond" inappropriate. Still, we can say that all
propositions depend for their truth upon the nature of what
is. I do not see how this aspect of the correspondence
theory can be forsaken. But different kinds of proposi
tions may depend for their truth on the real In different
ways. This fact constitutes the ground for saying that
they are true--true, however, in the plural sense of the
term, i.e., one epistemic correlation (borrowing Northrop1s
phrase) may apply to science, another to ethics, and
another to esthetics, etc. Each correlation may prove
essentially adequate for each specific field of analysis,
but at the same time may not prove adequate to other fields
of experience. Hence, pluralism in the notion of truth
offers the possibility of having various kinds of judgments
which pertain to various types of phenomena.
We may now return from this brief digression and pro
ject a pluralistic interpretation onto moral judgments.
231
Under these circumstances it is correct to maintain that
moral judgments are different kinds of judgments than are
natural "factual" Judgments. We should not forget,
however, that moral judgments are clearly made true by the
nature of the real. Still, it does not follow that moral
judgments are merely factual statements about the empirical
nature of the objects concerning which the judgments are
made. In one sense, when I say, "I ought to do A," and I
am asked why, my answer attempts to convince the questioner
of the "correspondence" between my neglect to do A and the
unhappy results which will ensue.
However, there is a wider sense in which it must be
conceded that moral judgments also have a non-natural pro
perty. But we must be careful that we do not make too much
of this non-natural property, or we shall reap the effects
of agnosticism, even as the disciples of G. E. Moore have
done in British philosophy. Agnosticism becomes possible
when intuitionism maintains that the essence of ethical
Judgments is a non-natural principle common to all observ
ers, and yet, at the same time, admits that there is no
possibility of producing any cognitively meaningful cate
gories for understanding these non-natural properties.
232
If, then, intuitionists who advocate the principle of
non-natural properties for ethical or jural obligatory
judgments, are to avoid agnosticism, they must present ways
of regarding experience, states of mind and actions,
which, though not giving descriptions, may prove to be
right or wrong even as descriptive judgments do. Insofar
as my moral judgments are "right," they express favorable
or unfavorable attitudes which are justified by the facts.
But the way in which they are justified differs from the
way factual judgments are justified. In attempting moral
judgments, we have the experience of feeling ourselves to
be under an obligation.; and this feeling is a genuine obli
gation. Obligation produces an irresistible impulse, that
which proves to be common to the nature of men. But this
does not mean that "ought" assertions are, after all, just
subjectivistic or psychological attitudes. An obligatory
phenomenon is more complex than is a simple emotivism, for
the "oughtness" of experience involves doing what you ought
to do even when to do so is not in accord with what you
desire most. Kant was correct in giving metaphysical
uniqueness to obligation, for he was quite aware that, if
oughtness had no objectivity, the essential property of the
233
"ought" would disappear. That Is to say, the desire to do
the "right" demands an object, and if there is no object
to which desire can attach itself, there is no possibility
of there being a desire. It is always necessary to desire
something.
To know that there are good reasons for acting as we
"ought" to act, and yet, at the same time, not to be able
to give further reasons why "oughtness" is a reason, is the
great contribution of Intuitionism. Intuitionlsm provides
an escape from a viciously infinite regress which leads
ultimately to ethical agnosticism.
However, while acknowledging the need for the intui
tional aspect in ethical theory, I find the term
"intuition" inappropriate. Intuition has frequently sug
gested some type of mystical penetration into the nature of
the real, which has tended to confirm itself by claiming to
be an apprehension or an inference of the given,. qua given.
Frequently this intuition is defined as an intuition in
the a priori sense, in some sense parallel to mathematics
or logical necessity. I do not concur with this conclusion.
It is because of the different and usually misleading
definitions which have developed around the term intuition
234
that I have deliberately defined the third step of moral
authority as "prehensive cognition." I have taken the
word "p rehens ion,1 1 of course, from Alfred North Whitehead,
and I mean by this term the feeling complex of the immed
iately given. I intend, however, that the word "cognition"
be included in the definition to introduce the notion of
the knowledgeableness of ethical assertions.
Prehensive cognition tries to avoid the vast over
simplification of intuitionlsm and, at the same time,
grants to intuitional theory the recognition that, however
■ much we reason, the possibility of reasoning itself pre
supposes the immediacy of apprehended experience as "true."
Even A. J. Ayer acknowledges that in mathematical demon
strations the proof must start somewhere. "There must be
at least one axiom of some sort which is known
intuitively."21
My reference to prehensive cognition, however, is an
attempt to present a wider sense of intuition— wider be
cause it includes everything which we directly perceive and
21
I do not mean to suggest that Ayer grantsthis inter
pretation to questions of ethics. This quotation is taken
from A. C. Ewing, Second Thoughts, p. 66, quoting The
Problem of Knowledge, Chapter I, Section 3.
235
remember, as well as what is a priori self-evident. It
admits that moral theory is based upon knowledge and
reasonable belief which Is made up of logical inference,
sense perception, induction, memory, and congenital
necessity. All of these elements, taken as a complex, are
what may be described as the basis for cognitive moral
judgments. The acquiescence of individuals to moral judg
ments implies that some factual properties or circumstances
constitute a reason why certain attitudes ought to be
adopted or certain actions done. Jural judgments rest
their authority upon these moral Judgments and hence
function as authoritative when they coincide with what are
conceived to be satisfactory derived cognitive ethical
judgments, i.e., judgments arrived at through the process
22
of the genetic, pragmatic, and Intuitional complex.
22a
Jural judgments may be In themselves of two types:
(l) A Judgment made by a judge as to the meaning or the in
tention of some specific law, and (2) a judgment as to
whether a specific order or code should become a law. It
Is my intention to speaV: of jural judgments in the latter
sense.
22b
An objection may be made, that I have made no dis
tinction between jural judgment and jural law, the conten
tion being that many jural laws do not Involve one in moral
considerations, such as the requirement to drive on the
236
We may mention parenthetically that even Northrop1s
jural methodology constitutes part of the basis of moral
authority because it serves as an authenticating system in
a limited, yet significant, manner at the prudential level.
It therefore becomes important to revisit the ethical
considerations of Kant, not however, at the level of the
prudential ought, as I have suggested that Northrop has
done, but, rather, at the level of the categorical impera
tive. Kant1s categorical imperative appears in three form
ulations, each of which establishes moral authority in a
somewhat different manner. The moral authority derived
23
from the first rendering of the categorical imperative
is that authority which is bestowed by the moral judged
right si'de of the road. But it Is my opinion that, while
It Is Indeed true that the decision to drive either on the
right- orthe left-hand side of the road does not constitute
a moral judgment, the necessity of the authorities to make
a decision as to which side one will drive on for the safe
ty of all, is a moral judgment. It is a moral rather than
a prudential judgment because such a judgment concerns two
of the three basic metaphysical principles which I have
asserted to be necessary to all moral assertions, viz,
genetic necessity, and pragmatic involvement.
2^Kant«s presentation of the categorical imperative
may be found in Fundamental Principles of the Metaphysics
of Morals.
237
having subjected the judgment to the criteria of rational
reflection. However, the categorical imperative in the
first sense is not merely demonstrating its freedom from
self-contradiction. It is, more importantly, showing it
self to be a judgment which will satisfy the demands for
objectivity which man, as a rational moral animal, makes
(the universal property of moral phenomena).
The moral authority of the second formulation of the
categorical imperative is derived by subordinating the
moral judgments to social goals which supply a network of
ends. This use of the imperative provides the rational
factors necessary for my second step (pragmatic Justifica
tion), i.e., a rational basis for heteronomous or
externalized authority. The third category suggests the
autonomous imperative. Here man is subjected as an indivi
dual to rational and social responsibility. This is the
internalized moral ought. Kant hims.elf calls the third
formulation autonomous as compared to the first and second
formulations, which are heteronomous. As he puts it:
I will therefore call this the principle of Autonomy
of the will, in contrast with every other which I
accordingly reckon as Heteronomy. (Fundamental
Principles, p. 57)
238
I may summarize the argument by suggesting that
jurisprudence draws its authority from three distinguish
able and, at the same time, interrelated sources: Genetic
necessity, pragmatic involvement, and prehensive
24
cognition. Each prescribes a partial basis for moral
authority. But each also necessarily Involves the others.
If one is emphasized to the exclusion of the others,
authority is impoverished and becomes unacceptable as
juridical authority. Of course, this complete schema pre
supposes morality at an ideal level— a level which is
always being sought but is never being achieved.
24
Professor Werkmeister offers a method for authenti
cating moral claims which is particularly interesting
because it seeks to resolve the problem of obligation by
going beyond the three classical divisions which I have
offered in this dissertation, viz, emotlvism, naturalism,
and intuitionlsm. WerkmeiBter operates on the primacy of
reason principle and reason’s capacity to establish empiri
cal reality as a constant rather than a variable, and as
permanent rather than fluid. If we scrutinize our moral
experience closely, he states, we realize that the very act
of morality implies the principle of commitment, and
commitment entails analytically an obligation. Obligation
is thus self-imposed by the very nature of the commitments
we make. Many of these commitments may be codified in our
societies, and then are our laws. But legal obligation
stems from the same commitments as does moral obligation.
"Legal obligations are but society's explicit recognition
and codification of at least some of the moral obligations
entailed by commitment."
239
All too frequently, man Is an animal of passion and
torment who persistently carves out his moral codes and
Jural laws in a rough hue, and the discrepancy between the
legal ideal and the actual law produces within the sensi
tive individual the uneradicable pain from which there
is no respite. Man's frailty becomes the tragic natural
element which destroys him, or which propels him after the
morally more valuable.
Yet, Werkmeister continues, it is possible to ask a
further question: On what grounds do we Justify our
commitments? The answer to this question does not lie in
logical entailment but, rather, in the individual's, or the
society's, "comprehensive value theory." What must be kept
clearly in mind is that when one makes commitments, the
decision to make them is value-motivated; but, once having
made the commitments, one is duty-bound by the very nature
and meaning of "commitment" to adhere to them. It is in
this latter sense that we have moral obligation, or, in
the specific area of this dissertation, legal obligations.
(Notes from W. H. Werkmeister, "Moral Obligation and the
Problem of Values," Proceedings of the Sixth Inter-
American Congress of Philosophy, 1959, Buenos Aires,
Argentina.
A SELECTED BIBLIOGRAPHY
Adams, E. M. "A Critique of Emotive Theory of Ethical
Terms," The Journal of Philosophy, 46:54-9-553* August
1949.
Aiken, Henry David. "The Authority of Moral Judgments,"
Philosophy and Phenomenological Research, 12:513-525*
1952.
___________________. "Emotive ’Meanings' and Ethical
Terms," The Journal of Philosophy, 41:456-470, July
1944.
"The Levels of Moral Discourse,"
Ethics, 62:235-247, 1952.
Albaum, Martin. "The Moral Defenses of the Physiocrats’
Laissez-Faire," Journal of the History of Ideas,
16:179-197* April 1955.
Allen, L. E. "Law, Logic, and Learning," Harvard Law
Review, 31:8-11* i960.
Aquinas, St. Thomas. Summa Theologlca, trans. Fathers of
the English Dominican Province. London, 1914-1925-
Aristotle. The Nicomachean Ethics, trans. W. D. Ross.
Oxford, 1925.
Aronson, Moses J. "Cardozo’s Sociological Jurisprudence,"
Journal of Social Philosophy, 4:15-44, 1938.
Austin, John. The Province of Jurisprudence Determined
and the Uses of the Study of Jurisprudence. New York,
Ayer, Alfred J. Language, Truth and Logic. London, 1936.
240
241
Barker, Sir Ernest, ed. John Locke: An Essay Concerning
the True Original, Extent and End of Civil
Government, Oxford, 19^8.
___________________ , trans. Introduction to the Politics
of Aristotle. Oxford, 19^-
Barnes, Winston H. P. "Ethics Without Propositions,"
Aristotelian Society Supplementary, 21:1-30, July
19^8. ~
Barrett, Edward F., ed. Pniversity of Notre Dame Natural
Law Institute Proceedings, V. Notre Dame, 1953.
Benn, S. I. Social Principles and the Democratic State.
London, 1959.
Bentham, Jeremy. An Introduction to the Principles of
Morals and Legislation, ed. Philip Wheelwright.
Garden City, 1935.
______________The Principle of Morals and Legislation.
Oxford, 1907.
________________ . Rationale of Punishment. London, 1830.
________________ . Theory of Legislation, trans. from French
of E. Dumont by C. M. Atkinson. 3 vols. Oxford,
1914.
Bentley, Arthur. "Logicians' Underlying Postulations,"
Philosophy of Science, 13:3-19* 1946.
Bergmann, Gustav. "Review of the General Theory of Law and
State of Hans Kelsen,1 1 Ethics, 57:213-215* April 1947.
and Lewis Zerby. "The Formalism In
Kelsen's Pure Theory of Law," Ethics, 55:110-130,
January 1945.
Berlin, Isaiah. The Hedgehog and the Fox. New York, 1953.
Black, Max, ed. Philosophical Analysis. Ithaca, 1950.
242
Black., Max, C. L. Stevenson, and I. A. Richards, "A
Symposium on Emotive Meaning,” The Philosophical
Review, 57:111-157, 1948.
Bodenheimer, E. "The Province of Jurisprudence," Cornell
Law Quarterly, 46:1-15, Pall I960.
Bradley, P. H. Ethical Studies. Oxford, 1927.
Brandt, R. B. "The Emotive Theory of Ethics,” The
Philosophical Review, 59:305-318, July 1950*
_____________. "Stevenson's Defense of the Emotive Theory,"
The Philosophical Review, 59:535-540, October 1950.
Brecht, Arnold. "The Myth of Is and Ought," Harvard Law
Review, 54:811-831, March 1941.
Brinton, Crane. A History of Western Morals. New York,
1959.
Broden, T., Jr. "The Strawraan of Legal Positivism," The
Notre Dame Lawyer, 34:530-555, August 1959.
Brown, Bernard E. "Morris Cohen's Search for Justice,"
Journal of the History of Ideas, 14:249-263, April
1953.
Brown, Stuart M. "Inalienable Rights," The Philosophical
Review, 64:192-211, April 1955.
Browning, Robert W. "On Professor Lewis' Distinction
Between Ethics and Valuation," Ethics, 59:95-111,
January 1949*
Burtt, Edwin Arthur. "Reason and Nature," The Philosophi
cal Review, 41:610-620, November 1932.
Cahn, Edmond. The Moral Decision. Bloomington, 1955.
Cairns, Huntington. Law and the Social Sciences. New
York, 1935.
243
Cardozo, Benjamin N. The Growth of the Law. New Haven,
1924.
_____________________. The Nature of the Judicial Process.
New Haven, 1921.
. The Paradoxes of Legal Science.
New York, 1928.
Carnap, Rudolf. Philosophy and Logical Syntax. London,
1935 •
Carpenter, J. Estlin. "Early Conceptions of Law in Nature,"
Hibbert Journal, 21:711-724, July 1923-
Cicero, Marcus Tullius. De re publica, De legibus, trans.
Clinton Walker KeyesT London, 1928.
Cohen, Felix S. Ethical Systems and Legal Ideas. Camden,
1933 =
| _____________. "The Holmes-Cohen Correspondence," Journal
of the History of Ideas, 9:3-52, January 1948.
. "The Subject Matter of Ethical Science,"
The International Journal of Ethics, 42:397-418, July
1932.
. "Transcendental Nonsense and the Function
al Approach," Columbia Law Review, 35:809-849* June
1935 =
Cohen, Morris. American Thought. Glencoe, 1954.
______________ . Faith of a Liberal. New York, 1946.
____________"Jurisprudence as a Philosophical
Discipline," The Journal of Philosophy, 10:225-232,
1913 =
. Law and the Social Order. New York, 1933=
Reason and Law. Glencoe, 1950.
244
Cohen, Morris. Reason and Nature: An Essay on the
Meaning of Scientific Method. London, 1931*
Creegan, Robert P. "Natural Law," The Journal of
Philosophy, 43:124-132, February 1946.
d'Entreves, A. P. Natural Law. New York, 1951*
De Vecchio, Georgio. Justice. Edinburgh, 1952.
Dewey, John. "Austin's Theory of Sovereignty," Political
Science Quarterly, 9:31-52, March 1894.
Dickinson, John. "The Problem of the Unprovided Case,"
University of Pennsylvania Law Review, 81:115-129,
December 1932.
Dorsey, G. L. "The Influence of Philosophy of Law and
Politics in Western Civilization," Washington Univer
sity Law Quarterly, April, i960, pp. 123-143.
Duguit, Leon. L'etat, le droit objectif, et loi positive.
Pontemofng, 1901. Chapters 8-Tl"trans. in Modern
French Legal Philosophy, Modern Legal Philosophy
Series, 7 (1916), PP. 237-344.
Durkheim, Emile. De la Division du Travail Social. 2 vols.
Paris, 1893.
_________________. "Deu lois de 1*evolution penale," Anne
Sociologique, IV, 1900.
Ebenstein, William. Die rechtsphllosophische Schule der
Relmen Rechtslehre. Leipzig, 1938.
Ehrlich, Eugen.u - Beltr&ge zur Theorie der Rechtsquellen.
Tubingen, 1902.
_______________ . Die Jurlstische logik. Tubingen, 1918.
. Grundlegung der Soziologie des Rechts.
Munchen, 1913*
245
Evans, J. L. "On Meaning and Verification," Mind, 62:1-18,
January 1953.
Ewing, A. C. The Definition of the Good. New York, 1947.
____________ . Second Thoughts in Moral Philosophy. New
York, 1959.
Pitch, Robert E. "An Experimental Critique of Rational
istic Ethics," The Journal of Philosophy, 37:365-375j
July 1940.
Plew, Antony, ed. Essays on Logic and Language. Oxford,
1951 •
Fouillee, A., J. Charmont, and L. Duguit, and R. Demogue.
The Law Theories of A. Fouillee, J. Charmont, L.
Duguit, and R. Demogue. The Modern Legal Philosophy
Series, trans. Mrs. Franklin Scott and Joseph P.
Chamberlain, editorial preface by Arthur W. Spencer,
introduction by John B. Windorn and F. P. Walton.
1 2 vols. Boston, 1 9 2 2 .
Frank, Jerome. Law and the Modern Mind. New York, 1936.
Frankena, William K. "Natural and Inalienable Rights,"
The Philosophical Review, 64:212-232, April 1955.
Friedmann,. W. Legal Theory. London, 1953.
Friedrich, Carl Joachim. The Philosophy of Law in
Historical Perspective^ Chicago, 1958.
Fuller, Lon L, The Law in Quest of Itself. Chicago, 1940.
_. "Positivism and Fidelity to Law. A Reply
to Professor Hart," Harvard Law Review, 71:630-672,
February 1958.
"A Rejoinder to Professor Nagel," Natural
Law Forum, 3:77-82, 1958.
246
Puller, Lon L. "Natural Law" Symposium, Part Is "Human
Purpose and Natural Law," The Journal of Philosophy,
53:679-705, October 1956.
Galtung, Johan. "Notes on the Difference Between Physical
and Social Science," Inquiry, 1:7-33, Spring 1958.
Garland, Edwin N. (rev. of General Theory of Law and State
by Hans Kelsen), The Journal of Philosophy, 43:712-
722, December 5, 1946.
Garnett, A. Campbell. "Charity and Natural Law," Ethics,
66:117-122, January 1956.
Garvin, Lucius. ■ "Obligation and Moral Agency," Ethics,
58:188-194, April 1948.
Gewirth, Alan. "The Quest for Specificity in Jurispru
dence," Ethics, 69:155-181, April 1959.
Graneris, J. and W. P. Calvert. "Meaning and Method In the
Philosophy of Law," The Catholic Lawyer, 5:194-206,
Summer 1959.
Gray, James C. Nature and Sources of the Law. New York,
1909.
Green, Thomas Hill. The Works of Thomas Hill Green.
London, 1911-191^
Gurvitch, George. Sociology of Law. New York, 1942.
Gurwitsch, Aron. "Hans Kelsen1s Society and Nature. A
Sociological Inquiry," Isis, 36:142-146, January 1946.
Guttmacher, Manfred S. and Henry Weihofen. Psychiatry and
the Law. New York, 1952.
Hall, Everett W. "The 1 Proof1 of Utility in Bentham and
Mill," Ethics, 60:1-18, 1949-
Hall, Jerome. Living Law of Democratic Society. New York,
1949.
247
Hamburger, Max. Morals and Law: The Growth of Aristotle's
Legal Theory. New Haven, 1951.
Hampshire, Stuart. Spinoza. London, 1951.
Hare, R. M. The Language of Morals. Oxford, 1952.
Hart, H. L. A. "Are There Any Natural Rights?" The
Philosophical Review, 64:175-191* April 1955.
______________. "Definition and Theory in Jurisprudence,"
Law Quarterly Review, 7 0 : 3 7 - 6 0 , 1954.
_____________. "Positivism and the Separation of Law and
Morals,1 1 Harvard Law Review, 71:593-629* February
1958.
and A. M. Honore. Causation in the Law.
Oxford, 1959.
Hastings, W. J. "The Immutable Foundations of Law,"
The Law Journal, 11:440-459* May i960.
Hayakawa, S. I. Language in Action. New York, 1941.
Hegel, Georg Wilhelm Friedrich. Samtliche Werke,
Grundlinien der Phllosophie des Rechts. Bd. 6.
Leipzig, 1 9 2 0 .
Hobbes, Thomas. Leviathan. Printed for Andrew Crooke at
the Green Dragon in St. Paul's Church Yard, 1651.
Hobhouse, Leonard Trelawney. Morals in Evolution.
London, 1906.
Hocking, William Ernest. Present Status of the Philosophy
of Law and of Rights. New Haven, 1926.
Holmes, Oliver Wendell. "The Path of the Law," Harvard Law
Review, 10:457-478, March 1897.
The Holy Bible. Revised Standard Version. New York, 1953.
248
Hook, Sidney. "Reason and Nature: The Metaphysics of
Scientific Method," The Journal of Philosophy,
29:5-24, January 1932.
Hospers, John. An Introduction to Philosophical Analysis.
New York, 195^.
Hull, Clark L. "Value, Valuation, and Natural-Science
Methodology," Philosophy of Science, July, 1944,
pp. 125-144.
Hume, David. A Treatise of Human Nature, I. London, 1951.
. Enquiries Concerning the Human Understanding
and Concerning the Principles of Morals, ed. L. A.
Selby-Bigge. Oxford, 1902.
Jaffe, Raymond. 'Hie Pragmatic Conception of Justice.
Berkeley, 19^0.
Jensen, 0. C. The Nature of Legal Argument. Oxford, 1957.
Kant, Immanuel. Critique of Pure Reason, trans. N. Kemp
Smith. London, 1929.
____________Fundamental Principles of the Metaphysics
of Morals. Chicago, 1949.
Kaplan, Abraham. "Are Moral Judgments Assertions?" The
Philosophical Review, 51:280-303, May 1942.
Kelsen, Hans. "Causality and Imputation," Ethics, 61:1-11,
October 1950.
_______ . Die philosophischen Grundlagen der
Naturrechtslehre und der Rechtsposltivismus.
Charlottenburg, 1928.
____________ . "The Dynamic Theory of Natural Law,"
Louisiana Law Review, 16:592-620, June 1956.
"Foundations of Democracy," Ethics, 66:1-
101, July 1955.
249
Kelsen, Hans. General Theory of Law and State. Cambridge,
1946.
_____________. "The Natural Law Doctrine Before the Tri
bunal of Science," The Western Political Quarterly,
2:481-513, December 19^9.
_____________. "Pure Theory of Law and Analytical Juris
prudence," Harvard Law Review, 55:44-70, November 1941.
_____________. "Science and Politics,1 ’ American Political
Science Review, September, 1951, pp. 64l-66l.
■ _________ . "Value Judgments in the Science of Law,"
Journal of Science, Philosophy and Jurisprudence,
July, 1942.
_____________ . What is Justice? Berkeley, 1957.
_____________. "What is the Pure Theory of Law?" Tulane
Law Review, 34:269-276. February i960.
Kluckhohn, Clyde. "Ethical Relativity: Sic et Non," The
Journal of Philosophy, 52:663-677, November 1955-
Knight, Frank H. "Natural Law: Last Refuge of the Bigot,"
Ethics, 59:127-135, January 1949.
Lauterpacht, H. Recognition in International Law.
Cambridge, 19^-7 •
Lepley, Ray, ed. The Language of Value. New York, 1957.
, ed. Value: A Cooperative Inquiry. New York,
1949. "
Leslie, Charles. "The Emotive Meaning of Ethical Terms,"
Mind, 46:14-31, 1937.
Lewis, Clarence Irving. An Analysis of Knowledge and
Valuation. La Salle” 19^6.
Mind and the World-Order. New
York, 1929.
250
Lewis, H. D. "Some Observations on Natural Rights and the
General Will," Mind, 46:437-453, October 1937.
Lorente de No, R. "A Study of Nerve Physiology," (Studies
from the Rockefeller Institute for Medical Research)
New York, 1947.
Mabbotts, J. D. "Punishment," Mind, 48:156-157, April
1939.
Maine, Sir Henry Sumner. Ancient Law. London, 1906.
Maritain, Jacque. The Rights of Man and Natural Law.
London, 1945-
McCulloch, W. S. "A Heterarchy of Values Determined by the
Topology of Nervous Nets," The Bulletin of Mathemati
cal Biophysics, 7=83-93, 1945.
________________ and W. Pitts, "A Logical Calculus of the
Ideas Imminent in the Nervous System," The Bulletin
of Mathematical Biophysics, 5=126-133, December 1943-
Melden, A. I. "Two Comments on Utilitarianism," The
Philosophical Review, 60:519-523, October 1951.
Mill, John Stuart. On Liberty. London, 1859.
Montrose, J. L. "Legal Theory for Politicians and Sociolo
gists," Political Studies, 3:211-221, October 1955.
Moore, G. E. Prlncipia Ethica. Cambridge, 1922.
Moore, Underhill and Charles C. Callahan, "Law and Learning
Theory: A Study in Legal Control," Yale Law Journal,
5 3 : 1 - 1 3 6 , December 1943 i
Morris, Charles. Signs, Language and Behavior. New York,
1946.
Morris, Clarence. "Justice and Scientific Method,"
Columbia Law Review, 60:936-943, November i960.
251
Morris, Herbert. "Verbal Disputes and the Legal Philosophy
of John Austin," U. C. L. A. Law Review, 7:27-56,
I960.
Munro, L. K. "The Rule of Law in the World," Marquette
Law Review, 4 3 : 2 0 - 3 0 , Summer 1959.
Nagel, Ernest. "Fact, Value and Human Purpose," Natural
Law Forum, 4:26-43, 1959.
___________ "On the Fusion of Fact and Value: A Reply
to Professor Fuller," Natural Law Forum, 3 : 7 7 - 8 2 ,
1958.
Northrop, F. S. C. The Complexity of Legal and Ethical
Experience. Boston, 1959.
__________________. "Ethical Relativism in the Light of
Recent Legal Science," The Journal of Philosophy,
52:649-662, November 1955*
__________________, ed. Ideological Differences and World
Order. New Haven, 1949.
______ ___________. The Logic of the Sciences and the
Humanities. New York, 1947-
______________The Meeting of East and West. New
York, 1946.
__________________. "The Neurological and Behavioristic
Psychological Basis of the Ordering of Society by
Means of Ideas," Science, April 23, 1948, pp. 411-417.
__________________. "The Scientific Method for Determining
the Correct Ends of Social Action," Social Science,
22:218-227, July 1947.
Nowell-Smith, P. H. Ethics. London, 1954.
Oates, Whitney J. and Eugene O'Neill, Jr., eds. The
Complete Greek Drama, trans. R. C. Jebb. New York,
ips:----------------
252
Ofstad, Harold. "The Function of Moral Philosophy/'
Inquiryj 1:35-71, Spring 1958.
Ogden, C. K., and I. A. Richards. The Meaning of Meaning.
New York, 1923*
Oppenheim, Felix E. "Outline of a Logical Analysis of
Law," Philosophy of Science, 11:142-160, July 1944.
Parsons, Talcott. "The Place of Ultimate Values in
Sociological Theory," The International Journal of
Ethics, 45:280-316, 1934-35.
_________________. "Some Aspects of the Relation Between
Social Science and Ethics," Social Science, 22:213-
217, July 1947.
Passerin D'Entreres, A. Natural Law: An Introduction to
Legal Philosophy. London, 1951*
Paton, G. W. A Textbook of Jurisprudence, 2nd ed. Oxford,
1951.
Paton, H. J. The Modern Predicament. London, 1955-
Patterson, Edwin W. "Hans Kelsen and His Pure Theory of
Law," California Law Review, 40:5-10, 1952.
____________________. Jurisprudence: Men and Ideas of the
Law. Brooklyn, 1953.
Perry, R. B. Realms of Value. Cambridge, 1954.
Thought and Character of William James.
Boston, 1935-
Petrazhitskii, Leon. Law and Morality, trans. Hugh W.
Babb. Cambridge, 1955•
Pickard, W. A. "Two Problems About Duty," Mind, 41:153-
157, April 1932.
253
Pitts, Walter. "How We Know Universals: The Perception
of Auditory and Visual Forms," The Bulletin of
Mathematical Biophysics, 9:127-146, 1947-
Popkins, Richard H. "A Note on the ’Proof' of Utility in
Mill," Ethics, 61:66-68, 1930.
Popper, Karl R. "Notes on Natural Laws and So-Called
'Contrary-to-Fact' Conditionals," Mind, 58:62-66,
January 1949.
The Open Society and its Enemies. London,
- ig47_
Pound, Roscoe. An Introduction to the Philosophy of Law.
New Haven, 1922.
______________. "The Call for a Realistic Jurisprudence,"
Harvard Law Review, 44:697-701, 1931-
______________. "Fifty Years of Jurisprudence," Harvard Law
Review, 51:444-472, January 1938.
______________. "The Ideal Element in American Judicial
Decision," Harvard Law Review, 45:136-148, November
1931.
______________. Law and Morals. Chapelhill, 1926.
______________. "The Progress of the Law," Harvard Law
Review, 41:174-199, November 1929.
Quinton, A. M. "Punishment," Analysis, 14:133-144, June
1954.
Radin, Paul. Primitive Man as Philosopher. New York, 1957.
Rawls, John B. "Justice as Fairness," The Philosophical
Review, 67:164-194, August 1958.
______________. "Two Concepts of Rules," The Philosophical
Review, 64:3-32, January 1955.
Reck, Andrew J. "The Philosophical Context of P. S. C.
Northrop's Legal Theory," Tulane Law Review, 3:505-
522, April I960.
■ ______________ . "The Social, Political, and Legal
Philosophy of Paul Weiss," Tulane Law Review, 3^:69-
76, December 1959-
Rice, Philip Blair. On the Knowledge of Good and Evil.
New York, 1955-
Robinson, Richard, H. J. Paton, and R. C. Cross. "The
Emotive Theory of Ethics," Aristotelian Society
Supplementary, 22, July 1945"!
Rosenblueth, Arturo, Norbert Wiener, and Julian Bigelow.
"Behavior, Purpose, and Teleology," Philosophy of
Science, 10:18-24 , January 1943.
Ross, Alf. A Textbook of International Law. London, 1947.
__________. Kritik der sogenannten praktlschen Erkenntnis.
Leipzig, 1933.
"On the Illusion of Consciousness," Theoria,
7 :171-202, 1941.
__________. On Law and Justice. Berkeley, 1959.
___________. "On the Logical Nature of Propositions of
Value," Theoria, 11:172-210, 1945.
_________ . Theorie der Rechtsquellen. Leipzig, 1929.
_____________Towards a Realistic Jurisprudence, trans. from
the Danish by Annie I. Fausb^ll. Copenhagen, 1946.
Ross, W. D. The Right and the Good. Oxford, 1930.
Rousseau, Jean Jacques. The Social Contract, and Dis
courses, trans. G. D. H. Cole. London, 1947.
255
Ruby, Jane E. "The Ambivalence of St. Thomas Aquinas'
View of the Relationship of Divine Law to Human Law,1 1
Harvard Theological Review, 48:101-128, April 1955-
Ryle, Gilbert. The Concept of Mind. London, 1949.
______________. Dilemmas. Cambridge, 1954.
Salmond, John W. "The Theory of Judicial Precedents,"
Law Quarterly Review, 16, 1900.
Schllpp, Paul Arthur, ed. The Philosophy of G. E. Moore.
Evanston, 1942.
Schrodinger, Erwin. Mind and Matter. Cambridge, 1958.
Smith, James Ward. "Intrinsic and Extrinsic Good," Ethics,
58:195-208, April 1948.
Smullyan, E. Bendit. "Value Judgments and the Social
Sciences," The Journal of Philosophy, 42:197-210,
1945.
Spencer, Herbert. Principles of Sociology. 3 vols. New
York, 1910.
Spiegelberg, Herbert. "Justice Presupposes Natural Law,"
Ethics, 49:343-348, April 1939.
Stace, Walter Terence. The Destiny of Western Man. New
York, 1942.
Stanlis, Peter J. "Edmund Burke and the Law of Nations,"
American Journal of International Law, 47:397-413,
July 1953.
Stevenson, Charles L. "Brandt's Questions About Emotive
Ethics," The Philosophical Review, 59:528-534,
October 1950.
_________________. "The Emotive Conception of Ethics and
its Cognitive Implications," The Philosophical Review,
59:291-304, July 1950.
256
Stevenson, Charles L. "The Emotive Meaning of Ethical
Terms," Mind, 46:15, 1938.
Ethics and Language. New Haven,
19W.---; -----
Stone, Julius. The Province and Function of Law. Sydney,
1946.
Strauss, Leo. "On Locke's Doctrine of Natural Right,"
The Philosophy Review, 61:475-502, October 1952.
. "Origin of the Idea of Natural Law," Social
Research, 19:23-60, March 1952.
Sumner, William Graham. Folkways. Boston, 1906.
Tandahl, H. D., W. S. McCulloch, and W. Pitts. "A Statis
tical Consequence of the Logical Calculus of Nervous
Nets," The Bulletin of Mathematical Biophysics,
5:135-137, December 1943- ~
Tennant, F. R. "Theism and Laws of Nature," Harvard
Theological Review, 17:375-391. 0ctober~1924.
Thayer, James B. "The Origin and Scope of the American
Doctrine of Constitution Law," Harvard Law Review,
7:129-156, October 1893-
Tillich, Paul. Systematic Theology. 2 vols. Chicago,
1956.
TImasheff, N. S. An Introduction to the Sociology of Law.
Cambridge, 1939*
Toulmin, Stephen E. The Place of Reason in Ethics.
Cambridge, 1950.
The Uses of Argument. Cambridge,
1958:
Urban, William Marshall. Fundamentals of Ethics: An Intro
duction to Morals. New York, 1930.
257
Von Ihering, Rudolf. Law as a Means to an End, trans.
Isaac Huslk. New York, 1926.
Von Neumann, John. The Computer and the Brain. New Haven,
1958.
Ward, Lester. Dynamic Sociology. New York, 1883.
Warrender, H. "Political Philosophy of Hobbes: His Theory
of Obligation," Political Studies, 5:295-308, October
1957.
Wasserstrom, Richard A. The Judicial Decision. Stanford,
1961.
Weihofen, Henry. The Urge to Punish. New York, 1956.
Weiss, Paul. "Natural Law" Symposium, Part II: "The
Nature and Locus of Natural Law," The Journal of
Philosophy, 53:713-721, November 1956.
Werkmeister, William H. The Basis and Structure of
Knowledge. New York^ 1948.
_ . "Moral- Obligation and the Problem
of Values," Unpublished paper, Sixth Inter-American
Congress of Philosophy, 1959, Buenos Aires, Argentina.
Theories of Ethics. Lincoln,
1961.
________. "Theory Construction and the
Problem of Objectivity," Symposium on Sociological
Theory, ed. Llewellyn Gross. Evanston, 1959.
Westermarch, Edward Alexander. Origin and Development of
Moral Ideas. London, 1906.
Weyr, Franz. Rechtsphilosophle und Rechtswlssenschaft.
Leipzig, 1921.
Wiener, Norbert. Cybernetics. New York, 1940.
258
Wild, John. "Natural Law and Modern Ethical Theory,"
Ethics, 63:1-13, October 1952.
_______ . Plato1s Modern Enemies and the Theory of
Natural Law. Chicago, 1953-
Williams, Glanville. "Law and Language," Law Quarterly
Review, 61:71-86, 61:179-195, 61:293-303, 61:384-
4o6, 1945; 62:387-406, 1946.
Witherspoon, Joseph P. "The Relation of Philosophy to
Jurisprudence," Natural Law Forum, 3:105-134, 1958.
Wittgenstein, Ludwig. Tractatus Logico-Philosophicus.
London, 1922.

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Creator Burrill, Donald Rex (author)

Core Title The Problem Of Moral Authority In Modern Jurisprudence

Degree Doctor of Philosophy

Degree Program Philosophy

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest,Philosophy

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Werkmeister, William H. (committee chair), Bowman, Francis J. (committee member), Long, Wilbur H. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c18-245961

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Dmrecord 245961

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Rights Burrill, Donald Rex

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