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Propositions about Law

Published online by Cambridge University Press:  16 January 2009

B. E. King
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Extract

Propositions about law result from thought about law, which is the business of jurisprudence. We shall be concerned with those propositions in which jurisprudence formulates its most general conclusions. Such propositions are expressed in statements or sentences of the general grammatical form ‘Law is “so and so”’, or more briefly, ‘Law is “X”’. By propositions about law we shall mean propositions, statements or sentences in this form. Similarity in form does not, however, necessarily imply similarity of logical function, any more than the use of the same word, ‘law’, is a guarantee that the same ‘thing’ or ‘entity’ is being referred to. Our propositions may in fact have etymological, defining, explanatory and/or emotive functions. To distinguish and to clarify these functions is the purpose of this article.

Type
Research Article
Information
The Cambridge Law Journal , Volume 11 , Issue 1 , March 1951 , pp. 31 - 39
Copyright
Copyright © Cambridge Law Journal and Contributors 1951

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References

1 It is suggested that the three types express or are respectively (1) substantive rules, (2) procedural rules, (3) rules of judicial thought or of the judicial process.

2 Thus the statements in command form to be found in Acts of Parliament or other authoritative documents would be, to adopt Gray's terminology, mere sources of law and not themselves law or legal rules. It is perhaps preferable to designate such authoritative formulaæ, deferred to by the courts, as legal norms,—and they will be eo designated in this article. Rules of law will thus be considered to have their sources in legal norms, or in those agencies recognised by the courts as competent to formulate legal norms.

3 Cf. Collingwood, , The Idea of History, p. 152.Google Scholar ‘The question now arises: What is the difference between such forms of thought as history and science? Each is an attempt to envisage reality (that is, experience) from a particular point of view, in terms of a particular category. History is the way in which we conceive the world sub specie præteritorum'. Similarly law is the way in which we conceive the world, but especially human activity, in its relation to the probable reaction of courts. To conceive the world in this way is to indulge in legal thought, which like history and science, is a distinctive mode of experience. Oakeshott states this idea by saying that whereas philosophy is experience itself, history and science and so forth are ‘modes of experience’. ‘Experience is modified… by arresting it at a certain point and there, using the point of arrest as a fixed postulate or category, constructing a “world of ideas” in terms of that postulate…. It is not, however, a “world of mere ideas”. It is… the world, as seen from that fixed point in experience, and therefore, subject to that qualification, rightly seen’: ibid., p. 153. The postulate of legal thought is of course the existence of a court or system of courts whose reactions to events are reasonably predictable. Any system of law is the world seen in its relation to those reactions and expressed in legal pro-positions. [See also the writer's article on the ‘Concept of Law’ in C.L.J., Vol. 10, No. 3, 1950, at pp. 428, 429. Law is, however, there conceived as consisting of legal rules rather than as the state of affairs expressed in legal propositions. There are three types of such propositions (see note 1), but in this article it is only necessary to consider those expressing rules of substantive law.] The affinities between this view and the view of the Viennese school will be obvious. In legal thought as here defined the postulate of an active court replaces the postulate of a ‘basic norm’, and the latter becomes the postulate of ‘judicial thought’ as the term is used in note 10, infra.

4 If I go to my solicitor and inquire, ‘may I safely do so and so?’, he is likely to reply, ‘Yes, you have a legal right (or liberty) to do it’, or alternatively ‘No, you have a legal duty to refrain’. He seems to be assuming the existence of a legal rule, or the existence of a liberty or duty. In either case he seems to have considered my act in relation to the probable reactions of a court, favourable or unfavourable, and the ‘existences’ he assumes seem to be no more than the probability of these reactions.

5 There is probably no single proposition which has engendered so much respect for ‘law’ as Aristotle's proposition. But it may well be doubted whether the ‘thing’ respected was always the thing intended to be referred to by Aristotle. When he contrasted the rule of law with the rule of men, did he intend to engender respect for the commands of a Sovereign power? It is possible that his real meaning is best expressed as follows—‘When men are ruled by reason unaffected by desire, then and then only can we say that law exists and that men are ruled by law’. He might well regard contemporary civilisation as completely lawless.

6 See Jones, , Historical Introduction to the Theory of Law, at p. 14.Google Scholar

7 It is hardly fair to accuse Continental legal philosophers of doing this deliberately. Nor is it true to say that they tend to confuse what ought to be with what is. It is more accurate to suggest that the Anglo-Saxon jurist is more ready to admit that law ought to be what the Continental jurist says it is, than to agree with him. They tend to regard different ‘things’ as law—or, more accurately, the connotation of the terms Recht and droit differ too widely from the connotation of the term law to be brought into line with it by the addition of the qualifications ‘positives’ or ‘positif’. Positives Recht is more accurately translated as ‘positive right’ than as ‘positive law’.

8 See Maclver, , The Web of Government, at p. 39.Google Scholar ‘Myth is the all-pervading atmosphere of society, the air it breathes. One great function of myth is to turn valuations into propositions about the nature of things…. In this way it ratifies values, attaching them to reality.’

9 Book of Genesis, Chap. II, v. 19, ‘…. and whatsoever Adam called every living creature, that was the name thereof’.

10 The term ‘sources of law’ is used here to mean those agencies recognised by the courts as competent to formulate legal norms (see note 2). While these agencies, which vary with time and place, are indicated by the general concept of law postulated by current judicial thought (or, in Kelsen's terminology, by the ‘basic norm’) it is not intended to suggest that this thought is completely autonomous. Discussions of ‘the nature of law’ may be regarded as discussions of the factors which determine judicial thought—stark power, reason, national consciousness, philosophical theories, economic interest, the need for stability, the need for change, and so on.

11 It is suggested that this may explain why Professor Allen, in Law in the Making, can give so accurate a reflection of judicial thought on the sources of law without once attempting a clear and precise definition of his subject-matter.