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Legal Ontology and Legal Reasoning*

Published online by Cambridge University Press:  12 February 2016

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Extract

By “legal ontology” I mean the religious or philosophical view which is the basis of a system of law and by “legal reasoning” I mean the totality of techniques which legal theorists and lawyers use to adjust that system to the requirements of adjudication; these requirements essentially being security and justice. Since the role of the judge is to proclaim the law in each specific case, we want his decisions to be not arbitrary, to be predictable in that they treat cases which are basically similar in the same way. We also want them to be seen as equitable, appropriate to the circumstances, the ways and the customs of the community. In reconciling stability and flexibility, the various systems to be compared in this article, i.e. Jewish law, Continental European law and Common law, allocate differently the powers of judge and legislator, regarded as complementary to one another. It will be seen that this division of powers changes at different times, while at the same time the ontology according to which the allocation of powers is effected becomes more flexible.

Type
The Philosophy of Morris R. Cohen - A Symposium
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981

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Footnotes

** Professor Emeritus, Faculty of Law and Philosophy, University of Brussels; Visiting Professor, Faculties of Law and Philosophy, Hebrew University of Jerusalem.
*

This paper will also appear as a contribution to the forthcoming Festschrift to Professor Julius Stone, to be edited by Professor A.R. Blackshield and published by Butterworths.

References

1 As to this see my paper “La Bible et son interprétation juridique par les talmudistes” at the Louvain colloquium (10 Nov. 1975) published in the proceedings of the colloquium Oral and Written Tradition, L. Dequeker, ed. (Institutum Judaicum, Brussels), 42–62. For more detailed treatment see Cohn, H., Jewish Law in Ancient and Modern Israel, (Ktav Publishing House, New York, 1971).Google Scholar

2 Cf. This quote from the Jerusalem Megillah, IV, 74d, was given to me by Professor Julius Stone: “Whatever a competent scholar will yet derive from the Torah, that was already given to Moses on Mt. Sinai”.

3 De l'esprit des lois, Part I, Book I, Ch. III. 6.

4 Op. cit. Part I, Book I, Ch. I.

5 The Social Contract, Book II, Ch. VI.

6 Op. cit. Bk. II; Ch. IV.

7 Cf. Ch. Perelman, , Logique Juridique, Nouvelle Rhétorique, (Dalloz, Paris, 1979), 16.Google Scholar

8 Cf. Bonnecase, , L'école de l'exégèse, pp. 133134 Google Scholar, cited by Husson, L., “Analyse critique de la méthode de l'exégèse”, in Nouvelles éludes sur la pensée juridique (Dalloz, Paris, 1974) 182.Google Scholar

9 Cited by L. Husson, op. cit., at 183.

10 See on all these matters Ch. Perelman, , Logique Juridique, Nouvelle Rhétorique, (Dalloz, Paris, 1979).Google Scholar

11 Llewellyn, K. in Encyclopaedia of Social Sciences (Macmillan, New York, 1930), vol. III, p. 249 Google Scholar (see Case Law).

12 Proceedings of the American Philosophical Society (1947), vol. 91, pp. 405–420.

13 Commentaries I, (Oxford, 2nd ed., 1776) 69.

14 On case law cf. Cross, A.R., Precedent in English Law (Clarendon Press, Oxford, 3rd ed., 1977)Google Scholar and MacCormick, Neil, Legal Reasoning and Legal Theory (Clarendon Press, Oxford, 1978).Google Scholar In an illuminating article, Professor Julius Stone shows the limited importance of the Practice Statement made by Lord Chancellor Gardiner in 1966. See his “1966 And All That: Loosing the Chains of Precedent” (1969) 69 Colum. L.R. 1162, esp. 1189–1199.

15 Bentham, J., Works, Bowring (ed.) (Edinburgh, 1843) vol. V., p. 235 Google Scholar, cited by Chafee, op. cit., supra n. 12 at 410–411.

16 Chafee, op. cit., p. 413.

17 Black and White Taxicab Co. v. Brown and Yellow Taxicab Co., 276, United States Reports (1928), pp. 533–534 (cited by Chafee, op. cit., pp. 413–414).

18 Erie Railroad Co. v. Tompkins, 304 U.S., 64, 78.

19 Margaret Hall, (ed.) Selected Writings of Benjamin Cardozo (New York, 1947) 3637.Google Scholar

20 Sir Pollock, F., Essays in Jurisprudence and Ethics (Macmillan, London, 1882) 85.Google Scholar

21 (1908) 21 Hvd.LR. 383.

22 Ch. Breitel, D., The Courts and Lawmaking, in Legal Institutions Today and Tomorrow, M.C. Paulsen, ed., (Columbia University Press, New York, 1959) 29.Google Scholar