Affinities and Antinomies in Jurisprudence

Editorial Committee of the Cambridge Law Journal

Affinities and Antinomies in JurisprudenceAuthor(s): Roy StoneSource: The Cambridge Law Journal, Vol. 22, No. 2 (Nov., 1964), pp. 266-285Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4504963 .

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272 The Cambridge Law Journal [1964]

logic. Consistent with this view is the psychological belief in the

primacy of facts and the view that words picture reality or mirror

the facts. Another feature which emerges from the supposed

inadequacy of language to say anything about reality which is

meaningful is the view that all save scientific statements are value

judgments. Ethics is a function, metaphysics is nonsense and

language is circular. These features which were very strong in

logical positivists are discernible in Ayer's present philosophical

position and, by a generation remote from its source, vestiges of it

can be seen only faintly in King, but glaringly in Dias. They share the same mistaken foundations and these surprisingly enough are the mistakes of logical positivists. It is not surprising, however, that the attack on linguistic analysis and the critical technique of

the linguistic analysts should enable us to do two things: in the

case of King it has given the scent, so that we can hunt down the

mistake, and, in the case of Dias, it has enabled us to ferret out and

then snare the error.

Part II

Hart has sufficiently discussed the epistemological and linguistic matters which lie behind Dias's account of jurisprudence. With

that review this author is in agreement. Hart's review 28 points out

what are the particular linguistic problems peculiar to law and

philosophy. The simple view that words may mean what the user

wants them to mean is too trivial and naif to sustain. The more

recondite and intricate reasons which logical positivists have

advanced are outside the scope both of Dias's article and book.

We may here merely assert with Waismann 27 that the logical

positivists were wrong. Then we may simply remark that the view

that philosophy is verbal only, that metaphysics is nonsense, and

that many traditional arguments revolve around and are resolved

by seeing that words and meanings alone lie at the bottom of the

dispute, is mistaken.

This view and the arguments for it are still a strong impulse in

Dias and lead him to attribute to King a spurious activity and

belief, for Dias thinks that King's definition of law is something

intuitively derived rather than the permitted, that is permitted by Dias, method of using definition as a tentative hypothesis. The

passages cited above from King justify my submission that he,

King, is entitled to be treated as an empiricist even on Dias's strict

se 4 Jo.S.P.T.L. 143 (1958). 27 Logic and Language, Second Series (ed. Flew), pp. 16-17.























C.L.J. Affinities and Antinomies in Jurisprudence 283

arguments proceed from the cases both actual and hypothetical and

possible. This removes metaphysics and the law into the logical. This feature they share with mathematics and logic. This differ-

entiates the law and metaphysics from contingent questions, which

are concerned with questions of fact in this sense of fact that is, that the answer to a contingent question of fact, if true, might have been false, and if false, might have been true.

9. The use of models and analogies in science might be thought of as analogous to the use of cases in law, so that it might be

said that the law is inductive and so empirical. However, these

analogies, between models and analogies, fields and forces in

scientific theory are different from cases used in the paraductive or case by case procedure. Consideration upon the difference

between law and fact will reveal the differences between law and

science. Evidence and testimony as to a matter of fact must be

distinguished from arguments of law. This, it is hoped, shows that

there is some analogy between mathematics and law on the one

hand and metaphysics and law on the other, which reveals the

philosophic nature of a jurisprudential inquiry. 10. To set up a formal system requires a meta-language. To

do this requires the use of ordinary English or some other natural

language. Meta-languages, setting up formal logical and mathe-

matical systems and legal systems, use the logic of ordinary

language. An analysis of such meta-languages is said to be

contained in a meta-meta-language. The greater the number of

meta-languages, the less formal and more natural are the languages

analysing or setting up these progressions. This is why the most

formal systems are reducible to natural languages. A comparative

study of such meta-languages reveals further analogies between

law, mathematics and logic. The use of the concept " class "

seems some sort of necessity. It is interesting to consider why. On

the face of it there is a world of difference between the class calculus

and class gifts, but the underlying ideas are similar.

Because Dias denies that there is any analogy between the

language of mathematics and law he is led to believe that the

settling of conceptual matters in the law is merely the making of a value judgment or solving a verbal dispute, whereas it is not.

Because he and the Swedish Realists consider that metaphysics are

nonsense they also consider that the settling of conceptual disputes tells us nothing about reality, and so merely solve verbal disputes, whereas they do not.52 Because judges and philosophers may

32 See WiBdom, "

Gods," Philosophy and Psycho-analysis, and Bee also "Philosophy, Psychology and Metaphysics," ibid.







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Affinities and Antinomies in Jurisprudence