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  1. 2 Studies in Logic, Grammar and Rhetoric

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  1. 2 2007

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  1. 2 Malec A.

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THE IS-OUGHT PROBLEM AND LEGAL RATIONALITY

100%
Malec A.
Studies in Logic, Grammar and Rhetoric
|
2007
|
issue 11(24)
7-13
EN
In the paper the following issue is discussed: what is rational behaviour of a lawyer in the process of the interpretation of legal texts? This issue is investigated within the theory of legal interpretation where two key models of interpretation are considered. The first model is based on the idea that rules prescribed by the lawmaker, and somehow 'concealed' by him in legal texts, should be derived from legal texts merely by semiotic procedures or at least - by procedures that prefer semiotic measures. The second model is based on the idea that rules derived from legal texts should be just. So, if a legal text implies something unjust, then we are supposed to abandon the direct meaning of the text and interpret the text in such a way that the rules derived from the text are just. So lawyers have two opposing models of interpretation regarding legal texts. Therefore, they are able to defend anything. If we want them to defend something that is in accordance with 'the letter of the law', they will use the first model of interpretation. However, if we want them to defend something that is in conflict with 'the letter of the law' they can then use the second model. In both cases they can be seen as somehow being rational. But are they equally rational by using opposing models? It is Hume's statement that moral distinctions cannot be derived from reason (the is-ought problem). The true meaning of the thesis is that the so called 'positive sciences' cannot help us with moral dilemmas: it is impossible to infer values from facts or to infer facts from values. But if so, then how can we put forward binding arguments for any model of legal interpretation? Several arguments based on intuition can be put forward to support the thesis that axiological statements and non-axiological statements are logically separated. In the paper three of them are discussed: (i) an argument based on the idea of intractability of social phenomena, (ii) an argument based on the idea of expected time horizon of events, (iii) an argument based on the Ant and the Grasshopper Paradox. As a conclusion we have to admit that it is impossible to establish a universal model of legal interpretation.
2

A FORMAL APPROACH TO NATURAL LAW

100%
Malec A.
Studies in Logic, Grammar and Rhetoric
|
2007
|
issue 11(24)
35-45
EN
In the paper we use a symbolism taken from logic to explicate some notions of civil law, such as: subjective right, relative right, right, liability, obligation and claim. The notions that are examined are those which belong to civil law, evident since the Roman Empire. They are a part of our language. Therefore we need not accept any system of values to accept such notions: the system of values connected with these notions is an intrinsic part of our language. By having a formal explication of the above notions we are able to find some logical consequences of these notions. In particular, we are able to establish relations between the explicated notions. In our theory based on the first order predicate logic (To the axioms of the first order predicate logic we add some new axioms that are supposed to be explanations of the legal notions in question.) we can prove that: (i) every claim is correlated to an obligation, (ii) every right is correlated to a liability, (iii) every subjective right brings rights, (iv) some rights do not bring claims, (v) rights derived from any relative right are claims, (vi) relative rights bring claims, (vii) liabilities corresponding to relative rights are obligations, (viii) any debtor's liability corresponds to a claim of a creditor, (ix) a liability consists in that a creditor may demand from a debtor to fulfil the debtor's debt and the debtor ought to fulfil the debt, etc. As a conclusion we have that it is possible to indicate material properties, which any rational system of law should possess, without choosing any hierarchy of values. As a consequence, it is possible to develop an objective theory of natural law which is not limited to formal considerations (as consistency or completeness of a system of norms or so on).
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