Abstract
In the present essay I shall attempt to elaborate, by means of an analysis which relies heavily on contemporary philosophical thought, the notion of justice as it has come down to us in historical tradition. There are many excellent works on justice by classical as well as by modern writers, however, I do not know of any work in which contemporary philosophy has had sufficient opportunity to advance our understanding of this perennial concern of mankind. In view of the number of capital works on ethics, metaphysics, theory of knowledge, and logic published since the beginning of this century, we may be entitled to assume that fresh insights are to be found in them which would greatly benefit also inquiries into the fundamental principles of justice. Although I intend to avail myself of this source of information to a considerable degree, I do not believe that the modern is a self-value. I am aware that the evolution of thought occasionally takes regressive turns, so that in the learning of a given period much of value possessed by earlier generations may have become lost. Thus, in writing the present essay, I have not closed my mind to inspirations that the philosophical past, as far back as the pre-Sokratics, may provide for an inquiry into the fundamentals of justice. However, I feel that the fundamentals of any great human concern should be reconsidered in any new philosophical situation.
For the initial stimulus of this essay my debt is to my lamented teacher Gustav Radbruch of Heidelberg. Heavy debts during its preparation were incurred to Professor Alexander Boyce Gibson of Melbourne for guidance on the early drafts, to Dr. Boris Bertelsons of Sydney for much challenging criticism, and to Professor Julius Stone for the influence of his treatise The Province and Function of Law (2nd ed. 1950) as well as for the benefit of constant interchange of ideas between us while the essay was taking its final form during my work with him at the Universities of Sydney and Harvard. My debts are great also to Professor Barna Horvath of the New School for Social Research in New York, to Professor Roderick M. Chisholm of Brown University in Providence, to Professor Samuel I. Shuman of Wayne University in Detroit, to Mr. Jaan Puhvel and Mr. K. Jaakko J. Hintikka of the Society of Fellows of Harvard University, to Dr. Stevan Glichitch of the University of Sydney, and to Miss Anita Pincas, B. A., of Sydney, who have read late drafts of the essay and offered valuable comments. For much assistance with the final form of linguistic expression I am indebted to Miss Zena Sachs, LL. B., of the University of Sydney and to my wife Hilda Tammelo.
I desire also to express my sincere appreciation to the Vice-Chancellor and the Research Committee of the University of Sydney for their assistance in making this work possible as part of the Research Programme of the Department of Jurisprudence and International Law of that University.
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References
For the meaning of this phrase see R. Pound: Justice according to Law,. 1951, esp. Part. 3.
See H. Kelsen: What Is Justice? 1957, 24.
See Kant: Die Metaphysik der Sitten, 1797, 139: „... wenn die Gerechtigkeit untergeht, so hat es keinen Wert mehr, daß Menschen auf Erden leben.“
On this notion see G. Radbruch: Rechtsphilosophie, 4th ed. 1950, 91 ff.
On the problem, What is philosophy?, see S. Alexander: Space, Time, and Deity, 3rd impr. 1950, vol. I, pp. 1–5
A. N. Whitehead: Science and the Modern World, 12th impr. 1953, 173–194
G. E. Moore: Some Main Problems of Philosophy, 1953, 1–27
K. Jaspers: Philosophie und Wissenschaft, 1949, passim
E. Fechner: Rechtsphilosophie, 1956, 1–7.
Cf. P. Tillich: Love, Power and Justice, 1954, 19, who characterises ontology as follows: „The questions of ontology are: ‚What does it mean that something is? What are the characteristics of everything that participates in being?‘“
Cf. also W. Van Orman Quine: From a Logical Point of View, 1953, 1, who says that the ontological problem can be put in the simple words: „What is there?‘“
On the concept of region in philosophy see E. Husserl: Ideas: General Introduction to Pure Phenomenology (transl. by W. R. Boyce Gibson, 1931) 77: „Region is just the highest and most exclusive generic unity belonging to a concretum, that is, the essential unitary connection of the summa genera which belong to the lowest differences within the concretum.“ See also ibid. 64.
For this expression see Tillich, op. cit. 18.
A metaphoric phrase used by Martin Heidegger in his essay: Über den Humanismus, 1949, 5.
On the equivocation of the word „justice“ see R. Pound: Justice according to Law, 1951, 2ff.
G. Del Vecchio: Justice (ed. by A. H. Campbell, 1952), 1ff.
It should be remarked that „just“ may be used also as an adverb. Th adverbial meanings of the word are, however, without any direct connection wit! the word „justice“ and are of little interest for the present inquiry. The advei corresponding to the noun „justice“ is „justly“.
On the linguistic origin of „iustitia“ Del Vecchio, op. cit. 3 ff., n. 8, gives some information.
See Ch. T. Lewis and Ch. Short: A Latin Dictionary, sub voce „justitia“. See also ibid. „Justus“ and „justum“.
Cf. the dictum of Ulpianus in D. 1, 1, 1: „Iuri operant daturum prius nosse oportet, unde nomen iuris descendat, est autem a iustitia appellatum: nam, ut eleganter Celsus definit, ius est ars boni et aequi.“ Cf. also the gloss to this dictum: „Est autem ius a iustitia, sicut a matre sua, ergo prius fuit iustitia quam ius.“ To hold this view, Ulpianus and his glossator could not have been philologists.
See, for example, Lord Mansfield’s judgment in Moses v. Macferlan, 1760, 2 Burr. 1005, at 1012: „... the defendant... is obliged by the ties of natural justice... to refund the money.“ W. R. Anson: Principles of English Law of Contract (20th ed. by J. L. Brierly, 1952), 430: „A has received money which is just that he should pay over to B.“
See also A. H. F. Lefroy: The Basis of Case Law, 1906, 22, Law Quarterly Review, 293, at 299, passim
G. C. Cheshire and C. H. S. Fifoot: The Law of Contract, 4th ed. 1956, esp. 548–556. When the term „just“ is employed in the text of constitutions, its sense is particularly liable to transcend that of the term „legal“. Constitutions are the fundamental law of a legal order and the words used in them can hardly derive their meaning from the law subordinate to the particular constitution. See for the occurrence of „just“ in the Fifth Amendment of the United States Constitution („just compensation“) and in Section 51 (xxxi) of the Australian Constitution („just terms“). See also for the occurrence of „justice“ in Articles (1) and 2 (3) of the Charter of the United Nations.
Cf. H. Winfield: Ethics in English Case Law, 1931/32, 45, Harvarc Law Review, 112, at 118; R. Pound: The Ideal Element in American Judicial Decisions, ibid. 136, at 138.
See E. Wolf: Rechtsgedanke und biblische Weisung, 1948, 12.
See ibid. 12 ff.
On the multiplicity of the idea of justice see E. N. Garlan: Justice anc Legal Realism, 1941, 129.
The lawyer’s attitude towards justice may be understood also on the ground that the notions „justice“ and „just“ do not belong to the same order as the typical lawyer’s concepts, for example, „property“, „contract“, and „crime“, but rather to the same order as „law“, „duty“, „legal relation“, etc., which are the basic notions of legal science. To inquire systematically into these basic notions is the concern of legal philosophy, like systematic inquiry into the basic notions of natural sciences (for example, „cause“, „space-time“, „event“) is the concern of philosophy of nature. The lawyer’s reserve with respect to the problem of justice may thus be partly due to his aversion to transcend the limits of his science and to enter the domain of philosophy where he may feel a stranger.
See A. Denning: The Road to Justice, 1955, 4–7 and viii.
Cf. Lord Justice Morris: The Spirit of Justice, 1954, 13.
He says the question, What is justice? „has been asked by men by far wiser than you and me and no one has yet found a satisfactory answer“ (Denning, op. cit. 4).
D. 1, 1, 10 pr.: „Iustitia est constans et perpetua voluntas ius suum caique tribuendi.“
De Finibus 5, 23: „... animi affectio suum cuique tribuens.“
In the present section I propose to sketch the conceptions of justice of Roscoe Pound, Julius Stone, Hans Kelsen, and Vilhelm Lundstedt as typical academical lawyers’ conceptions of justice. These writers might also be classed as legal philosophers whose doctrines of justice I shall consider in the last section of the present chapter. A reason for treating their thoughts under separate headings is that the former have approached the problem of justice from the direction of law whereas the latter have approached it from the direction of philosophy.
For Roscoe Pound’s conception of justice see his work: Justice according to Law, 1951, 1–35, esp. at 16, 19, 21, 28–31.
The reason why Pound, in connection with justice, speaks of „an“ ideal relation rather than of „the“ ideal relation is that it is for him not a settled question what is the ideal relation as something ultimate and absolute. See ibid. 19.
For Julius Stone’s conception of justice see his treatises: The Province and Function of Law, 2nd ed. 1950, 212, 226, 296, 375, 778–785; Legal Controls of International Conflict, 1954, 50–56, esp. at 53 ff.
See Stone: Province, 784. See there also a thought accredited by Stone to E. N. Garlan, Legal Realism and Justice, 1941, 127, 131, that justice is a „motive power“, a „continuous prod to the asking and answering questions“ and a thought that justice is the set and constant purpose, in one interpretation of Justinian’s classical formula, to give each his due.
For Hans Kelsen’s conception of justice see his works: What Is Justice? 1957, 1–24 and: General Theory of Law and State, 1946, 3–14.
For Vilhelm Lundstedt’s conception of justice see his essay: Law and Justice, in P. Sayre (ed.): Interpretation of Modern Legal Philosophies, 1947, 450–483. See also his work: Superstition or Rationality in Action for Peace? 1925, 33 ff., 129 ff., 189 ff.; and his treatise: Die Unwissenschaftlichkeit der Rechtswissenschaft, 1932, vol. I, pp. 171 ff.; 1936, vol. II, pp. 25 ff., 239 ff.
There is a great concern with the idea of justice in Jewish-Christian religious writings. But this concern never takes the form of a mythical picture of justice, clear in outlines and rich in details as Greek myths and dramas offer. It is doubtful as to whether the idea of justice as constituted in those religious writings relates to the same idea of justice which has been a subject of Western juristic and political interest. The continuity of the idea of justice as formed by Greek mythology with the idea of justice occurring in Western legal and political thought is, however, quite manifest.
On the linguistic origin of the word „δíϰη“, Professor Jaan Puhvel has kindly supplied the following learned note: „δíϰη is historically equated with Sanskrit díśā („direction“); the root noun Skt. dśā-corresponds to Latin *dix in the set phrase dicis causā („for form’s sake“). The underlying Indo-European verbal root *deik- means „to point out, show“ (Skt. diśáti, Gk. δεíϰνυ̇μɩ, Hittite tekkušanu-, Lat. in-dicō, Gothic ga-teihan, Old High German zeigōn). In Latin dīcō has assumed the secondary meaning „to say“. δíϰη thus may have meant earlier something like „proper direction**. Note that the adjective δíϰαɩoς in Homer means „observant of custom“, and only later „righteous“, „just“ in both legal and moral sense. Thus the origins of the word δíϰη are semantically close to the notion of „established rule, statute law“. From a strictly etymological point of view the origins of the words δíϰη and iūs are, of course, disparate. In Latin iūs, denoting largely merely iūs civīle (opposition: iūsque fāsque est), is in origin an old sacral word cognate with Skt. vós („weal“), especially in the formulaic phrase śam ca yóś ca („hail and weal“), and with Avestan yaož-dadāiti („to purify ritually“). It meant in Old Latin (in the form ious) „religious formula having force of law“ (cf. iura lēgēsque). iūdex („judge“) goes back to *ious-dix („one who points to such formulae“). Such use of ious was specifically Latin, for the other Italic languages Oscan and Umbrian employed, corresponding in meaning to ius> a cognate to Lat. modus (Umbr. mers for iūs, Osc. meddix for iūdex). The verb iurāre („to swear“) was derived form iās (cf. iūsiūrandum meaning „oath“), like iustus, which in turn yielded iūstitia.“
For the range of meanings of „δíϰη“ in the ancient Greek see H. G. Liddell and R. Scott: A Greek-English Lexikon, sub voce „δíϰη“.
As a curiosity it may be mentioned that Grotius has suggested (De Jure Belli ac Pacis, Proleg., 12) that the Latin „ins“ is of the same linguistic origin as „Zeus“ („Iovis“, „Iupiter“), which would imply that justice is an emanation of the Supreme Ruler of the Universe, whose one aspect is binding order („iugum“, „iungere“ derived from the same roots as the Sanskrit „yu“, which means „to bind“). If it is considered that in the early conception law was a divine order, an expression of God’s will, one can find the confirmation of the intimate connection of the notions of justice and law even in Jewish-Christian monotheistic religions, in which justice is regarded as an attribute of God Himself, connoting the „infallible proportion and intrinsic harmony of His Will“. Cf. G. Del Vecchio: Justice (ed. by A. H. Campbell, 1952), 5. On the idea of justice in the Holy Scriptures, see H. Kelsen: What Is Justice? 1957, 25–81.
For a detailed description of the relations of Dike to other Greek deities see E. Wolf: Griechisches Rechtsdenken, 1950, vol. I, pp. 19–69. See also for references to relevant literature and sources there.
And see H. Kelsen: Society and Nature, 1943, 196–199, 356 ff.
See Wolf, op. cit. 39–45.
This is why the goddess of justice is depicted her eyes bound.
See H. Diels: Die Fragmente der Vorsokratiker, 5th ed. 1934, 89, fragm. 1.
For interpretations of the dictum of Anaximander see M. Heidegger: Holzwege, 2nd ed. 1950, 296–343
E. Wolf: Griechisches Rechtsdenken, 1950, vol. I, pp. 218–234
W. Jaeger: Paideia: the Ideals of Greek Culture (transl. by G. Highet, 1939), 157 ff.
See Diels, op. cit., 236, fragm. 8, lines 13–15: „... justice does not allow [being] either to be born or destroyed by releasing it from bonds, but holds [it].“
See B. Russell: History of Western Philosophy, 1946, 46.
On the cosmological concept of justice of the Ionian school see J. Burnet: Greek Philosophy, 1928, Part I, p. 28ff.
On the idea of justice in pre-Sokratic philosophy as importing the principle of retribution see H. Kelsen: Society and Nature, 1943, 233–248.
See Diels: op, cit. 173, fragm. 102. For an interpretation of this dictum see Wolf, op. cit. 254–259. On the Herakleitean conception of justice see also Burnet, op. cit. 61 ff.
On the sophists’ legal and political thought see E. Wolf: Griechisches Rechtsdenken, 1952, vol. II, pp. 9–171.
On the Pythagorean conception of justice see G. Del Vecchio: Justice (ed. by A. H. Campbell, 1952), 42–50
A. Verdross-Drossberg: Grundlinien der antiken Rechts- und Staatsphilosophie, 2nd. ed. 1948, 26–29; Kelsen, op. cit. 360 ff.
On the Platonic conception of justice see H. Kelsen: What Is Justice? 1957, 82p–109; Verdross-Drossberg, op. cit. 69–126
B. Horvath: Die Gerechtigkeitslehre des Sokrates und des Platon, 1931, 10, Zeitschrift für öffentliches Recht, 258–280. The relevant Platonic dialogues are Politeia and Nomoi.
For the Aristotelian conception of justice see Aristotle: The Nico-machean Ethics (transl. by H. Rackham, 1947), bk. v. For the Aristotelian conception of virtue see ibid., bk. ii.
On the Aristotelian doctrine of justice see M. Hamburger: Morals and Law, 1951, passim, esp. 33–110
M. Solomon: Der Begriff der Gerechtigkeit bei Aristoteles, 1937; A Kelsen: What Is Justice? 110–136.
The latter is called by Aristotle also rectificatory, corrective, equalising, or bilateral justice.
For the Augustinian concept of justice see St. Augustine: De Diversis Questionibus, esp. ch. xxxi. On his legal and political thought see J. Sauter: Die philosophischen Grundlagen des Naturrechts, 1932, 57–65.
See St. Augustine: De Libero Arbitrio, ch. i, 5.
For the conception of justice of St. Thomas Aquinus see his treatise Summa Theologica, II—II, 58, 79, 80, 122. On his legal and political thought see Sauter, op. cit. 70–83. See also C. J. Friedrich: Die Philosophie des Rechts in historischer Perspektive, 1955, 25–30.
See St. Thomas Aquinus: Summa Theologica, I—II, 96–4.
For the conception of justice in Leibniz see esp. his works: Nova Me-thodus Discendae Docendaeque Jurisprudentiae, Part II; Dissertatio I de Actorum Publicorum Usu..., §§ 11, 12, 13. For discussion of the relevant thoughts in Leibniz and for further references see Del Vecchio, op. cit. 25–27, 39 ff.; Sauter, op. cit. 98–104.
For Dabin’s conception of justice see his treatise: Théorie Générale du Droit, 1944. Part III, ch. ii, iii. Or see an English translation by K. Wilk of this work entitled: General Theory of Law published in colume IV of 20th Century Legal Philosophy Series, 1950, 22–470, the relevant pages being 434–441; 443–449, 466.
For Del Vecchio’s conception of justice see his work cited supra n. 45, pp. 77–221, esp. at 77–90.
For Radbruch’s conception of justice see his lectures published under the title: Vorschule der Rechtsphilosophie, 1947, 23–25, and his treatise: Rechtsphilosophie, 4th ed. 1950, 124 ff., 168–183. This work has been published in English translation in vol. IV of: 20th Century Legal Philosophy Series (transl. by K. Wilk, 1950), 47–22, the relevant pages being 107–120.
See Radbruch: Rechtsphilosophie, p. 127: „Recht [ist] die Wirklichkeit,... die den Sinn hat, der Gerechtigkeit zu diene“
Cf. W. Sauer: Juristische Elementarlehre, 1944, 23, 65. Sauer conceives justice as one aspect of the legal idea, an idea that gives sense and value to the legal norms. The other aspect of the legal idea is common weal, which is justice realised. Justice, according to Sauer, is the highest aim of every juristic activity. It is a regulative idea — an aim which remains forever unattainable and veiled in mysterious obscurity, although it stands out clearer and clearer the more one proceeds to attain it.
Radbruch’s ultima verba bring two important modifications to his conception of justice. Because they do not seem to fit into the system of his thought on justice (which system was developed earlier), the outline in the present text has not included a statement of them. Towards the end of his life, Radbruch conceived the conflict between justice, legal certainty, and expediency as an inner tension, as a soliloquy of justice, rather than as a tension within the legal idea. He regarded this „inner tensix201C201D; and the paradoxes resulting therefrom not as something ultimate but as something penultimate which is to be transcended by love. (See E. Wolf’s Introduction to the 4th edition of Radbruch’s: Rechtsphilosophie, p. 72). The other important point in which Radbruch modified his conception of justice concerned the relation of justice to law. His: Fünf Minuten Rechtsphilosophie (written in 1945 and published in the annex of the 4th edition of: Rechtsphilosophie, pp. 335–337) suggests that a normative order, to be law, must not only be oriented to justice but must itself be just to some degree. He says (p. 336) that there can be laws of such measure of injustice and social harmfulness that validity and even legal character must be denied to them.
This account of Horvath’s conception of justice is drafted on the bask of his Hungarian treatise: Outline of Theory of Law (A Jogelmèlet vàzlata) 1937, 86, 116–119. See also his treatise: Rechtssoziologie, 1934, 264 ff. and his article: Gerechtigkeit und Wahrheit, 1929, 4, Internationale Zeitschrift für Theorie des Rechts, 1–54.
By the capacity of law’s performance Horvath means „its ability to further or hinder by its development, the development of society and that of each social objectivisation, in various directiox201C201D;. From the capacity of law’s performance the value quality of law may be inferred. See Horvath: A Jogelmèlet vàzlata, 86.
See the exposition of Hans Kelsen’s conception of justice supra section 2. See also H. Kelsen: The Metamorphoses of the Idea of Justice, in P. Sayre (ed.): Interpretations of Modern Legal Philosophies, 1947, 390–418.
See the exposition of Vilhelm Lundstedt’s conception of justice supra section 2.
Cf. L. Lavelle: De l’Etre, 2nd ed. 1947, 141: „Dire que les illusions des nos rêves n’existent pas, c’est dire qu’elles n existent que comme images, et qu’il ne faut pas les prendre pour des perception.“
Cf. A. Truyol: Doctrines Contemporaines du Droit des Gens, 1950, 54, Revue Generale du Droit Internationale Public, 377, who, criticising the doctrine of Lundstedt and other similar doctrines says: „Au fond tout ces doctrines sont construits a ‘priori, elles ont un caractere dogmatique frappant“ (p. 381 ff.).
For an apologia of legal science against Lundstedt’s attacks see W. Fuchs: Die Zukunft der Rechtswissenschaft, 1933, 21–77.
Cf. I. Tammelo: Drei rechtsphilosophische Aufsätze, 1948, 23–26.
See R. Pound: Justice according to Law, 1951, 22 ff.
Cf. A. Campbell Garnett: A Realistic Philosophy of Religion, 1942, 261, who observes that casting everything subjective, everything with which physical sciences cannot deal, is bad science and worse philosophy. „The psychological subject and all its contents are as much a part of the world order as summer and winter. There are no degrees of reality among concrete facts, and the value qualities of our inner experience are as much a fact as any other. Indeed they are the most important of all facts, for it is only in relation to them that other facts have importancx201C201D;
See Tammelo, op. cit. 23.
Cf. C. J. Friedrich: Die Philosophie des Rechts in historischer Perspektive, 1955, 2, who emphasises that human experience (die menschliche Erfahrung) comprises also man’s mental life (das geistige und seelische Leben des Menschen).
Cf. J. Stone: Legal Controls of International Conflict, 1954, 53 ff.
On the prima vista indications that „all the ideas of justice have something in common” see A. Brecht: Relative and Absolute Justice, in M. D. Forkosch: The Political Philosophy of Arnold Brecht, 1954, 21–48, at 34 ff.
Cf. K. Jaspers: Philosophic 2nd ed. 1948, 355: „He who wishes to be true, must have the courage to face the risk of error, and of putting himself in the wrong, must drive things to extremes and bring them to the knife’s edge, so that they can be decided in truth and reality.” (Transl. by Stone, op. cit. 321, n. 18).
„The just”, like „the righteous”, „the wicked”, etc. is also used to designate persons who are just, righteous, wicked, etc. In the present essay this usage is not generally followed. The corresponding notions will be expressed by the phrases „just man”, „unjust man”, etc.
Cf. K. Jaspers: Einführung in die Philosophic 2nd ed. 1950, 26: and the translation of this work by R. Manheim: Way to Wisdom, 1951, 23: „The source of philosophy is to be sought in wonder, in doubt, in a sense of forsakenness” (literally: „... in the experience of limit-situations”).
On the problem of „something”, especially in relation to the categories „existence” and „subsistence” see M. White: Toward Reunion in Philosophy, 1956, 63 ff.
Cf. Descartes: Meditationes de Prima Philosophia (ed. by C. Guttler, 1901), 92.
In the Cartesian dictum, „cogito” can be regarded as the central theme of epistemology, „ergo” the central theme of logic, and „sum” the central theme of the philosophy of human life.
For a critical analysis of the Cartesian formula „cogito ergo sum sive existo” see J. Anderson, The Cogito of Descartes, 1936, 14, Australasian Journal of Psychology and Philosophy, 48–68.
On the notion of entity cf. S. Alexander: Space, Time, and Deity, 3rd impr. 1950, vol. I, p. 176.
On the philosophical meaning of the word „appears” see S. E. Toulmin: The Place of Reason in Ethics, 1950, 126 ff.
On appearing, especially in relation to sense-data, see R. M. Chisholm: The Theory of Appearing, in M. Black (ed.): Philosophical Analysis, 1950, 102–119.
Cf. L. Wittgenstein: Philosophical Investigations (transl. G. E. M. Anscombe, 1953), 49, § 123: „A philosophical problem has the form: ‚I do not know my way about‘.”
Cf. C. I. Lewis: An Analysis of Knowledge and Valuation, 1946, 357 ff. on „mnemic preservation of past experience” and on the need to limit the Cartesian doubt in relation to it. On the validity of memory in general see ibid. ch. xi.
I find a certain reassurance in the thought that I am treading a path not untrodden by others, and I have companions even in my failure and frustration.
See L. Wittgenstein: Tractatus Logico-Philosophicus, 3rd impr. 1947, 189: „Whereof one cannot speak, thereof one must be silent.”
See L. Lavelle: La Presence Totale, 1934, 48; id.: De l’Etre, 2nd ed. 1947, 12, 53.
Cf. Lewis, op. cit. 88, who characterises the notions „Being” and „Entity” as having zero intension and universal comprehension. Cf. also P. Tillich: Love, Power, and Justice, 1954, 38: „Non-being is the negation of being within being itself.” And cf. the notion of Non-being in Vedic thought, about which Professor Jaan Puhvel has kindly supplied the following learned note: „Regarding the ontological status of Non-being, it is interesting to note that the problem is treated at least half a millennium before the earliest Ionian philosophers in the most remarkable cosmogonic hymn of the Rig-Veda (X. 129). By general Vedic philosophical opinion Being arose from Non-being, but this poem takes the position that in the beginning neither existed, and they came about only through the creation which also brought forth the gods: That is, they found the inherent close relationship and interdependence of both. By implication, the ontological equality of Being and Non-being is affirmed. The ultimate pre-creational origin of the world remains obscure to the poet.*4 Cf. for a commentary, translation, and further references K. F. Geldner: Der Rig-Veda, 1951, vol. III, 359–361.
On the philosophical problems of infinity and zero see B. Russell: Introduction to Mathematical Philosophy, 8th impr. 1953, 1–28, 63–96; 131–143.
For the classical statement of skepticism as a principle of inquiry see Hume: An Inquiry concerning Human Understanding, s. xii („Of the Academical or Sceptical Philosophy”).
On the problem of categories see generally, A. Trendelenburg: Geschichte der Kategorienlehre, 1846
E. von Hartmann: Kategorienlehre, 1923, in 3 volumes
S. Alexander: Space, Time, and Deity, 3rd impr. 1950, vol. I, bk. ii
E. Husserl: Formale und transzendentale Logik, 1929
N. Hartmann: Der Aufbau der realen Welt, 2nd ed. 1949.
See Hartmann: Aufbau, 265–352.
Cf. Alexander, op. cit. I, pp. 201, 343.
For this classification of statements see infra s. 9.
On the problem of the defining of the ontological notions see Alexander, op. cit. I, p. viii.
These questions will be asked in as abstract and general terms as possible in order to avoid disturbing and distracting intuitions which may be attached to notions of more concrete and particular nature, that also could be used to ask these questions. This manner of asking does not allow the expressions of the questions to be always quite idiomatic, and it must have some adverse effect upon the intellegibility of the questions. I have tried to make the sense of the questions more intelligible by illustrating them by examples. As regards the non-idiomatic character of their expression, all I can say is that ordinary language has not been designed for ontological purposes. I presume that there is no natural language in the world which would not suffer some violence by being made a vehicle of ontological discussions.
On the problem of the meaning of „about” see M. White: Toward Reunion in Philosophy, 1956, 31 ff.
Cf. K. Jaspers: Von der Wahrheit, 1947, 47–222; cf. also Alexander, op. cit. I, p. 183.
On intentio recta see N. Hartmann: Zur Grundlegung der Ontologie, 3rd ed. 1948, 49–51.
Cf. J. Llambias de Azevedo: The Eidetics and the Aporetics of the Law, in vol. Ill of 20th Century Legal Philosophy Series (transl. by G. Ireland, 1948), 403–458, at 403–411; Alexander, op. cit. I, p. 11
B. Russell: An Outline of Philosophy, 1927, 134.
Cf. P. Tillich: Love, Power, and Justice, 1954, 23: „Ontology is descriptive, not speculative. It analyses the encountered reality, trying to find the structural elements which enable a being to participate in being.”
On the verification of ontological propositions see op. cit. 24.
Cf. Nicolai Hartmann’s distinction of Sosein and Dasein in his Grundlegung, 88–149. Cf. also K. Engisch: Logische Studien zur Gesetzesanwendung, 1943, 40 ff.
Cf. A. Boyce-Gibson: The Philosophy of Descartes, 1943, 323.
Cf. W. Brock’s account of Sein und Zeit in M. Heidegger: Existence and Being (transl. by W. Brock, 1949), 83.
Cf. L. Lavelle: De l’Etre, 2nd ed. 1947, 40 ff.
Cf. E. Husserl: Ideas: General Introduction to Pure Phenomenology (transl. by W. R. Boyce Gibson, 1931), 232: „The old ontological doctrine, that the knowledge of „possibilities” must precede that of actualities... is... in so far as it is rightly understood and properly utilised, a really great truth.” On the problem of the modes of Being see generally
N. Hartmann: Möglichkeit und Wirklichkeit, 2nd ed. 1949, esp. pp. 45–60. On the intermodal laws see ibid. 60–102.
Cf. S. Alexander: Space, Time, and Deity, 3rd impr. 1950, vol. II, p. 41: „... Space-Time is the matrix of all empirical existence.”
On the reality of noetic being (of „ideas”) see Alexander, op. cit. II, p. 67 ff.
On the structure of Ontic Being see Hartmann: Aufbau, 171–218. See also Alexander: op. cit. II, p. 67 ff.
In the subsequent inquiries I shall use „eidetic being” and „ontic being” in preference to „ideality” and „reality” because of the widely ambiguous use of the latter terms.
On the problem of the notion „Entity” see generally A. N. Prior: Entities, 1954, 32, Australasian Journal of Philosophy, 159–168. Note Prior’s thesis that there are abstract entities (p. 154).
Cf. G. Del Vecchio: Ethics, Law, and the State, 1935, 46, International Journal of Ethics, 34, at 34: „Subject and object are not ‚thing‘ or matter, but transcendental criteria, which means necessary (a priori) points of view.”
It may be said that an object is an entity in one of the particular functions of Entity. Entity evidently embraces also Subject, a subject being an entity in another specific function of Entity. Thus there are subjects and objects of cognition, of valuation; grammatical subjects and objects, legal subjects and objects, etc. They all are entities.
See Hartmann: Aufbau, 447–458.
On the problem of Substance see M. Lazerowitz: Substratum, in M. Black (ed.): Philosophical Analysis, 1950, 176–194.
Cf. S. E. Toulmin: The Place of Reason in Ethics, 1950, 10 ff. Alexander, op. cit. II, pp. 246, 302.
On the notion of event see A. N. Whitehead: Science and the Moderr World, 12th impr. 1953, 91, 149 ff.
Cf. E. W. Hall: What Is Value? 1952, 225: „There is value...”
On the concept of value-conformity cf. A. Meinong: Psychologischethische Untersuchungen zur Werttheorie, 1894, 25.
Cf. also S. Alexander: Space, Time, and Deity, 3rd impr. 1950, vol. I, p. 188, vol. II, p. 241 ff.
Cf. J. Anderson: Determinism in Ethics, 1928, 6, Australasian Journal of Psychology and Philosophy, 241, at 243, who conceives value as „conformity to a standard”.
Cf. C. I. Lewis: An Analysis of Knowledge and Valuation, 1946, ch. xviii, esp. pp. 521 and 524.
Cf. E. Wolf: Das Problem der Naturrechtslehre, 1955, 90.
On the concept of situation see Alexander, op. cit. I, p. 240; P. Weiss: The Real Art Object, 1956, 16, Philosophy and Phenomenological Research, 341, at 347.
Cf. F. K. Beutel: Experimental Jurisprudence, 1957, 37–44.
On the notions of attribution (ascription) and predication see Lewis, op. cit. 388 ff.
Cf. B. Russell: Our Knowledge of the External World, 1914, 21.
On the problem of knowledge in general see C. I. Lewis: An Analysis of Knowledge and Valuation, 1946
N. Hartmann: Grundzüge einer Metaphysik der Erkenntnis, 4thed. 1949
B. Russell: Human Knowledge, Its Scope and Limits, 1948.
Cf. Lewis, op. cit. ch. ix, esp. p. 254 ff.
See N. Hartmann: Der Aufbau der realen Welt, 2nd ed. 1949, ch. 18, esp. p. 171 ff.
On the epistemological relation see J. Anderson: The Knower and the Known, 1926/27, 27, Proceedings of the Aristotelian Society, 61, esp. p. 62 ff.
Since epistemology is not a mere description of the given but also a questioning about the givenness of the given, it involves a reflecting attitude of the intellect, and is thus characterised by the intentio obliqua. Cf. the intentio recta of ontology as described supra s. 5.
Cf. the views on this matter of John Anderson stated concisely in his article cited supra n. 127.
See Hartmann, op. cit. 204–208.
On this notion see J. P. Sartre: L’Etre et le Neant, 41st ed. 1953, 16–23.
Cf. Descartes: Meditationes de Prima Philosophia, Meditatio Tertia; E. Husserl: Meditations Cartesiennes, 1931, 118; Lewis, op. cit. ch. i, esp. p. 17.
Cf. Russell: Human Knowledge, 439 ff.; F. Kaufmann: Methodenlehre der Sozialwissenschaften, 1934, 124.
On the types of cognition see C. Stumpf: Erkenntnislehre, 1939, vol. I, pp. 207–371.
On the status of the perceptive and reflective cognition in human experience see S. Alexander: Space, Time, and Deity, 3rd impr. 1950, vol. I, p. 4 ff., 29, 41 ff.
Cf. Lewis, op. cit. 24 ff.
On clear and distinct cognition cf. the classical statement of Descartes: Regulae de Inquirenda Veritate. For a comment thereon see A. Boyce Gibson: The Philosophy of Descartes, 1932, 151 ff.
On the use of the words „to apprehend” and „to comprehend” cf. Alexander, op. cit. I, p. 42.
Cf. J. Dewey: Theory of Valuation, 1939, 20 ff.
For the arguments that the true is a value see L. Lavelle: Traite des Valeurs, 1955, vol. II, p. 349.
See also Lewis, op. cit. 10: „Knowledge is not a descriptive but a normative category.” And see A. Sesonske: Cognitive and Normative, 1956, 17, Philosophy and Phenomenological Research, 1, at 8 ff.
R. M. Chisholm: Epistemic Statements and Ethics of Belief, 1956, 16, Philosophy and Phenomenological Research, 447–460.
On the criteria of trueness see Hartmann: Grundzüge, 427–444; I. Tammelo: Untersuchungen zum Wesen der Rechtsnorm, 1947, 24–29
S. E. Toulmin: The Place of Reason in Ethics, 1950, 95
S. Alexander: Space, Time, and Deity, 3rd impr. 1950, vol II, p. 251 ff.
Cf. F. H. Bradley: Appearance and Reality, 9th impr. 1930: „The criterion of truth may be called inconceivability of the opposite... Now the impossible may either be absolute or relative, but can never be directly based on our impotence... In the end, one has to say, ‚I must not‘, because I am unable but because I am prevented.” On the problem of evidence see especially
E. Husserl: Ideen zu einer reinen Phänomenologie und phänomenologischen Philosophie, 3rd impr. 1928, 282–303.
See also M. Farber: The Foundation of Phenomenology, 1943, 444–447.
See Lewis, op. cit. 191 ff.
For related viewpoints see A. N. Whitehead: Essays in Science and Philosophy, 1947, 95; Bradley, op. cit. viii; Lavelle: Traite, II, p. 361 ff.
See B. Russell: Sceptical Essays, 1948, 11–13.
For objections to excessive skepticism and on mitigation of skepticism see Hume: An Inquiry concerning Human Understanding, s. XII, part ii and iii. See also I. Tammelo: Rational Man and Radical Doubt, 1953, passim. On the limits of skepticism in Descartes see Boyce Gibson, op. cit. p. 82 ff.
With the argument that different types and modes of cognition are involved in the cognition of justice cf. C. I. Lewis: An Analysis of Knowledge and Valuation, 1946, 554: „Valuation is always a matter of empirical knowledge. But what is right and what is just, can never be determined by empirical facts alone.”
It is not a pure „Wesenserschauung”. On the method of Wesensersdiauung see E. Husserl: Erfahrung und Urteil (ed. by L. Landgrebe, 1948), 410–421.
See also A. Reinach: Was ist Phänomenologie? 1951, passim.
Cf. L. Lavelle: Traite des Valeurs, 1955, vol. II, p. 476.
On the Cognition of values see generally W. M. Urban: Valuation, Its Nature and Laws, 1909, 21–54
E. W. Hall: What Is Value? 1952, 63–112
A. Meinong: Psychologisch-ethische Untersuchungen zur Werttheorie, 1894, Part I, ch. i
Ch. Ehrenfels: System der Werttheorie, 1897, vol. I, ch. i
M. Scheler: Der Formalismus in der Ethik und die materiale Wertethik, 4th ed. 1954, 669, and references in the Index sub voce „Werterkenntnis”.
See also V. Kraft: Die Grundlagen einer wissenschaftlichen Wertlehre, 1937, 3 ff.
This is what Julius Stone implies when he says that the just „as a value may only be capable of being indicated by statements of its use or by statements pointing out the concrete contexts in which its content may be seen”. See his treatise: Legal Controls of International Conflict, 1954, 53 ff. On the apprehension of the entities of simple structure see Hall, op. cit. 3.
For the argument that injustice has a cognitive priority over justice see E. N. Cahn: The Sense of Injustice, 1949, esp. p. 15 ff.
See also A. E. Sutherland: The Law and One Man among Many, 1956, 72–74, who discusses this view of Cahn in a section entitled „Injustice perceived by indignation”.
Pure logic (as distinguished from the methodologies of particular sciences) rests on the idea of mathesis universalis, according to which the given has a basic rational structure apprehensible by means of uniform relations of universal applicability. On this idea see E. Husserl: Formale und transzendentale Logik, 1929, 64 ff.
N. Hartmann: Zur Grundlegung der Ontologie, 3rd ed. 1948, 293 ff.
O. Bondy: Logical and Epistemological Problems in Legal Philosophy, 1951, 29, Australasian Journal of Philosophy, 81, at 83
I. Tammelo: Legal Dogmatics and the Mathesis Universalis, 1948, 3. The scope of logic is assumed to extend to the whole realm of the knowable. This does not, however, mean that everything actually is or must be logically determinable, but that logical determinations may be sought wherever thought penetrates. All questions about logic itself transcend the scope of logic. They are an object of transcendental logic, which is epistemology and ontology applied to logical entities and to the entity „logic” itself. On formal and transcendental logic see Husserl, op. cit., passim.
L. Wittgenstein: Philosophical Investigations (transl. G. E. M. Anscomb, 1953), 42, § 89.
As in epistemology, the attitude of the mind engaged in logical inquiries is intentio obliqua.
On the criteria („tests”) of correctness see C. I. Lewis: An Analysis of Knowledge and Valuation, 1946, 111 ff.
See supra s. 7.
On the relations of logic and language cf. R. Carnap: The Logica Syntax of Language, 1947
A. J. Ayer: Language, Truth and Logic, 1948.
See B. Russell: An Inquiry into Meaning and Truth, 3rd impr. 1948 esp. pp. 30–47.
See I. Tammelo: Sketch for a Symbolic Juristic Logic, 1956, 8, Journal of Legal Education, 277, at 283, n. 36.
On the view that not all statements are propositions see A. Ross: Towards a Realistic Jurisprudence, 1946, 97 ff.
With this classification of statements cf. W. G. Becker: Die Realität des Rechts (II), 1952, 40, Archiv für Rechts- und Sozialphilosophie, 375, at 398 ff.
I. Tammelo: Untersuchungen zum Wesen der Rechtsnorm, 1947, 30–33.
The absence of a single term covering all kinds of non-indicative statements has been an embarrassement of discussion in this area. For the suggestion that I use the therm „precation” I am indebted to Professor Julius Stone. I am also again grateful to Jaan Puhvel who has supplied Professor Stone’s suggestion with the following learned note on the linguistic aspect of the term:
Cf. Wittgenstein, op. cit. 52, § 136: „What engages with the concept of truth... is a proposition.”
Cf. R. M. Hare: The Language of Morals, 1952, 5, 17–31.
Cf. also S. E. Toulmin: The Place of Reason in Ethics, 1950, 50 ff.
On the notion of in-tentionality see E. Husserl: Logische Untersuchungen, 1922, vol. II, part i, pp. 364 ff.
See also H. B. Veatch: Intentional Logic, 1952, esp. pp. 78, 396
A. Gurvitsch: On the Intentionality of Consciousness, in M. Farber (ed.): Philosophical Essays in Memory of Edmund Husserl, 1940, 65–83
M. Farber: The Foundation of Phenomenology, 1943, 333–387
R. M. Chisholm: Intentionality and the Theory of Signs, 1952, 3, Philosophical Studies, 56–63.
Cf. A. Pap: Elements of Analytical Philosophy, 1949, 482.
For a similar conception see E.W. Hall: What Is Value? 1952, 110–112, 189 ff., 237 ff. Hall employs the term „legitimate” in the same sense as „right” is employed in the present context.
Cf. M. White: Toward Reunion in Philosophy, 1956, 259. For an analysis of the notion „right” cf. Hare, op. cit. 151–162.
With the terms „thetic” and „non-thetic” cf. Hare’s terms „neustic” and „phrastic” (see Hare, op. cit. 8) which seem to serve a somewhat similar function.
On the concept „this” see Russell, op. cit. 108–115.
Cf. Tammelo, article cited supra n. 160, p. 288.
See ibid. 284–287.
On the problem of the modi of conclusions see A. Pfänder: Logik, 1929, 36 ff., 133 ff.
See Tammelo, article cited supra n. 160, p. 289.
For analysis of the semantic act see H. Leblane: Positions and Propositions on Universals, 1951, 12, Philosophy and Phenomenological Research, 95–104; Husserl, op. cit. 23 ff., 61 ff.
See also C. K. Ogden and I. A. Richards: The Meaning of Meaning, 10th ed. 1949
H. Lipps: Untersuchungen zu einer hermeneutischen Logik, 1938.
In the present inquiry the word „term” is ordinarily used for the signum of a notion and the word „sentence” is used for the signum of a statement.
On the distinction of significatum and notion see Lewis, op. cit. ch. vi, in whose terminology „significatum” is „linguistic meaning” and „notion” is „sense meaning”.
On noesis and noema see E. Husserl: Ideen zu einer reinen Phänomenologie und phänomenologischen Philosophie, 3rd. impr. 1928, 179–201.
On the need for a distinction between meaning and being true see H. L. A. Hart: A Logician’s Fairy Tale, 1951, 60, Philosophical Review, 198, esp. at 204.
Or — to use a term of C. I. Lewis — „self-inconsistent”. See Lewis, op. cit. 115, n. 3.
Absurd significata should be distinguished from metaphorical references, for example, „weighing the evidence”, „mansions of justice”, „the shepherd and guardian of Being”. These references are not devoid of content but may be pregnant with it. They need not even be empirically empty like, for example, „phoenix” and „ectoplasm”.
Many modern logicians, wielding the Occam’s Razor, have seen a possibility of excluding the significatum from the use of logic as an unnecessary entity and correlating the signa and designata directly with each other. See, for example, R. Carnap: Einführung in die symbolische Logik, 1954, 7, 16. In my opinion this leads to some artificial constructions and unnecessary complications in logical reasoning. What may seem theoretically simpler need not always be simpler in applications of theory.
On the problem of the paralogical see R. Heiss: Logik des Widerspruchs, 1932.
For a locus classicus on paralogisms see Kant: Kritik der reinen Vernunft, 1787, 448–595.
The paralogical can safely said to be nonsense only if a narrow criterion of „sense” is employed, for example, the criterion of empirical veri-fiability. For a critical evaluation of this criterion see White, op. cit eh. vi. esp. p. 109. It is more accurate to say that the paralogical is non-sense, that is, something to which no sense-experience corresponds. The paralogical is admittedly irrational; it is beyond rational apprehension. It is, however, not beyond the scope of reasonable handling. Reasonable attitude with regard to the paralogical does not appear to be ceasing to wonder about it or being silent about it but rather investigating the circumstances of its existence and its implications in order to learn thus everything that can be learnt about the dangers into which its aporiae may lure the thinker.
See J. Stone: Legal Controls of International Conflict, 1954, 53.
On the concept of „eidetic individuality” cf. E. Husserl: Erfahrung und Urteil, 1948, 460–471.
On the problem of the „ought” see generally I. Tammelo: Sketch for a Symbolic Juristic Logic, 1956, 8, Journal of Legal Education, 277, at 290–292.
Cf. A. N. Prior: The Ethical Copula, 1951, 29, Australasian Journal of Philosophy, 137–154
D. Grey: The Ethical Copula again, 1953, 31, ibid. 139–154. On the relations between „ought” and „imperatives” cf.
R. M. Hare: The Language of Morals, 1952, 163–179.
On the syntax of imperatives and other precations see E. W. Hall: What Is Value? 1952, 113–190.
On deontic modes see H. von Wright: Deontic Logic, 1951, 60, Mind, 1–15; id.: An Essay on Modal Logic, 1951; Tammelo, article cited supra n. 187, pp. 288–290, 292–295.
The statement „Y is obligatory to X” still preserves the character of being a norm. This character is preserved by the deontic mode „obligatory” as its element. Because of this element the statement is not to be qualified as an „is”-statement. For arguments that norms are „ought”-statements see G. Nakhnikian: Professor Fuller on Legal Rules and Purpose, 1956, 2, Wayne Law Review, 190, at 201 and passim.
Imperatives, like propositions, can be detached from the persons who are issuing them. Such imperatives are, to use a term of Karl Olivecrona, „independent imperatives”. They are to be distinguished from commands, to which a personal relation to the one who commands is constitutive. See K. Olivecrona: Law as a Fact, in P. Sayre (ed.), Interpretations of Modern Legal Philosophies, 1947, 542–577, at 546 ff.; id.: Der Imperativ des Gesetzes, 1942, 27 ff. According to Olivecrona, legal norms belong to the category of independent imperatives.
Cf. L. E. Thomas: Philosophic Doubt, 1955, 64, Mind, 333, at 340.
On the homonymity of the word „value” see L. Lavelle: Traite des Valeurs, 1953, vol. I, p. 3 ff. For rich references to relevant literature on the problem of values see this work as well as its second volume published in 1955.
As leading contemporary works on values see also E. W. Hall: What Is Value? 1952
C. I. Lewis: An Analysis of Knowledge and Valuation, 1946
V. Kraft: Die Grundlagen einer wissenschaftlichen Wertlehre, 1937
N. Hartmann: Ethik, 3rd ed. 1949
M. Scheler: Der Formalismus in der Ethik und materiale Wertethik, 5th ed. 1954.
In its narrow sense the notion „value” denotes only positive values (for example, the good). In its wide sense it denotes also neutral values (the neither-good-nor-bad) and negative values or disvalues (the bad). In the present inquiry the term „value” is used in its wide sense mainly. Where it is used in its narrow sense, this should be obvious from the context.
Cf. W. M. Urban: Valuation, Its Nature and Laws, 1909, 35 ff.; Lavelle, op. cit. I, pp. 188–196.
Cf. also S. Alexander: Space, Time, and Deity, 3rd impr. 1950, vol. II, p. 243. And cf. Cicero: De Finibus, 5, 23, who conceives iustitia as „animi affectio suum cuique tribuens”.
On comparative and superlative values thereby constituted see R. S. Perry: General Theory of Value, 1926, 19 ff., 597 ff.
On the degrees of values cf. Lavelle, op. cit. II, p. 8, n. 1.
On neutral values see Hartmann, op. cit. 613–620.
On this distinction see G. Moore: Principia Ethica, 1929, 5–17.
Cf. S. E. Toulmin: The Place of Reason in Ethics, 1950, 13–18.
Cf. Lavelle, op. cit. I, pp. 320–322.
On the problem of axiotic intensity cf. Perry, op. cit. 626–633, 642–644.
On the „higher” and „lower” values cf. Scheler, op. cit. 107–120.
On the hierarchical structure of the domain of values see Lavelle, op. cit. I, pp. 593–653; Hartmann, op. cit. 269–278; H. Reiner: Pflicht und Neigung, 1951, 168 ff.
On the problem of the Summum Bonum cf. Perry, op. cit. 659–692.
Cf. Lavelle, op. cit. II, p. 46.
These principles may be called „reasons”. On „reasons” in prescriptive contexts see G. Nakhnikian: Professor Fuller on Legal Rules and Purpose, 1956, 2, Wayne Law Review, 190, at 198 ff.
On the problem of criteria of valuation see R. M. Hare: The Language of Morals, 1952, 94–110.
On the notion of validity see A. Liebert: Das Problem der Geltung, 1921
H. Rickert: System der Philosophie, 1921, vol. I, p. 115 ff. V. Kraft, op. cit. 7; Lavelle, op. cit. I, 12 ff. On the problem of validity in connection with legal norms see
O. Brusiin: Über das juristische Denken, 1951, 129 ff.
On the nature of the criteria of validity cf. N. Hartmann: Ethics (transl. by S. Co it, 1932), vol. II, p. 70: „Just as the principle of motion need not itself be a motion, of life not itself life, just as the principles of knowledge are evidently far from being knowledge, so the universally ruling principle of the domain of value could very well be something else than a value.” Cf. To ulmin, op. cit. 11 ff. on tests to recognise qualities which cannot be directly perceived. And cf. Urban, op. cit. 395–408 on the sufficient reason of valuation.
„Substantiation” is a comprehensive notion denoting „verification” (used in relation to cognitive statements) as well as „justification” and „vindication” (used in relation to normative statements). The term „substantiation” seems to be more appropriate than „validation” as their common name because it aptly alludes to the process of seeking what is the axiotic ground (that is, the axiotic substance) of the existing valuations. On this problem cf. A. Sesonske: Cognitive and Normative, 1956, 17, Philosophy and Phenomenological Research, 1, at 12–15
H. Feigl: Validation and Vindication, in W. Sellars und J. Hospers (eds.), Readings in Ethical Theory, 1952, 667–680.
The criteria in reference to which the validity of a valuation is determined constitute the substance of this validity; they subsist in relation to the existing acts of valuation.
For a similar use of the term „judgment” see Lewis, op. cit. 457.
For an attempt to formulate rules providing criteria of axiotic dignity see F. Brentano: Vom Ursprung sittlicher Erkenntnis, 1921, 24 ff., 61 ff. Cf. Scheler, op. cit. 120–130.
See G. Radbruch’s report in Le But du Droit, 1938, 162: „Pour ma part, je prétends qu’il y a antinomie non pas seulment dans le monde des faits, mais aussi dans le monde des idées.”
For a limited hierarchy of values see R. Le Senne: Traité de Morale Générale, 1949, 678–681.
Nevertheless „there is truth about values and, with respect to value in objects, a truth which can be missed”. See Lewis, op. cit. 413. In this connection see also the discussion of Lewis on subjectivity and objectivity in reference to the cognition of values ibid, ch, xiii, esp. pp. 414 ff., 421 ff.
Cf. A. Campbell Garnett: The Moral Nature of Man, 1952, 14, 115–131.
Cf. N. Hartmann: Ethics (transi, by S. Coit, 1932), vol. III, p. 262: „Antinomies prove nothing against the coexistence of what is antinomically divided, even though they should be proved genuine antinomies, that is, should be insoluble. They prove the inability of thought to comprehend the coexistence.”
See Cicero: De Officiis, 1, 7.
See E. Brunner: Gerechtigkeit, 1943, 27 ff.
For instance, Disraeli is reported to have said: „Justice is truth in action.” See H. Potter: The Quest of Justice, 1951, 6.
Cf. the conception of Leibniz that the realisation of justice imports also aesthetic enjoyment „comme une belle musique ou bien une bonne architecture contente les esprits bienfaits”. Quoted by G. Radbruch: Rechtsphilosophie, 4th ed. 1950, 338. Cf. also J. Pieper: Über die Gerechtigkeit, 1953, 38.
Cf. Pieper, op. cit. 41 ff. Cf. also Aristotle: Ethica Eudemia, V, 5, 17, 1134 a, 1–6; M. Hamburger: Morals and Law, 1951, 53.
Man’s involuntary acts do not appear to have conformity to these values, for example, his unconscious movements or his behaviour caused by a vis maior.
The classical term for „one’s (its) due” is „suum”.
With this conception of equity cf. the Aristotelian view in Ethica Nico-machea, V, 10, 6, 1137 b, 26, that the nature of the equitable is a correction of law where it is defective owing to its universality. On the Aristotelian conception of equity see Hamburger, op. cit. 93–105. For the notion of equity as entertained by Continental legal philosophers see M. Rümelin: Die Billigkeit im Recht, 1921
J. Binder: Philosophie des Rechts, 1925, 396–409.
Consider this situation in the development of the English law of equity. On English equity see W. Friedmann: Legal Theory, 1949, 342 ff. On the ethical nature of the principle of equity see A. Campbell Garnett: The Moral Nature of Man, 1952, 188–193.
On equity see also P. Vinogradoff: Outlines of Historical Jurisprudence, 1920, 63–69
H. Cairns: Legal Philosophy from Plato to Hegel, 1947, 107–110.
The problem of the relations between justice and legal certainty was the main theme of discussion at the Third Session of the International Institute of Legal Philosophy and Sociology in Rome in 1937. Radbruch advocated the view that there were genuine antinomies between justice, legal certainty, and common weal. These antinomies could not be limited only to the appearances but must exist even in the realm of ideas. See G. Radbruch: Le But du Droit, in Le But du Droit: Bien Commun, Justice, Sécurité, 1938, 48–59. Delos advocated the contrary view contending that there were no antinomies between these values but they were in harmony with each other. See J.-T. Delos: Le Buts du Droit, ibid. 29–47. To Radbruchs words: „Je n’ai pas peur des antinomies irréconciliables: se décider c’est vivre” (p. 162), Delos answered: „Vivre ce ne pas décider entre des antinomies, mais c’est s’ouvrir à la verité et par là s’égaler a elle...” (p. 163). On the problem of legal certainty in relation to justice see also E. Garcia Maynez: Justice and Legal Security (transi, by A. Child, 1949), 3, Philosophy and Phenomeno-logical Research, 496–509.
On the distinction of the just and the charitable see L. Lavelle: Traité des Valeurs, 1955, vol. II, p. 29.
See Radbruch: Rechtsphilosophie, pp. 95, 278. See also id.: Vorschule der Rechtsphilosophie, 1947, 23.
Cf., however, the dictum of W. Fuchs: Neoklassik in der Rechtsphilosophie, 1954, 92: „Dike et Aletheia filiae Jovis: ideo justitiam et veritatem sorores esse censemus. Sine veritate et prudentia justi esse non possumus.”
Cf. Potter, op. cit. 23.
See Brunner, op. cit. 27 ff.
On the relations of the just with the useful and the expedient see C. K. Allen: Justice and Expediency, in P. Sayre (ed.): Interpretations of Modern Legal Philosophies, 1947, 15–28, esp. at 21–28. Cf. Bentham: Principles of Morals and Legislation, ch. x, s. xl; Spencer: Justice, ch. vii; Hume: An Inquiry concerning the Principles of Morals, s. iii („Of Justice”).
On the nature of these values see N. Hartmann: Ethik, 3rd ed. 1949, 88
G. Moore: Principia Ethica, 1929, 169.
It may be contended that in the ethical convictions as crystallised in Western civilisation, certain high moral values such as the magnanimous and the charitable have an axiotic dignity higher than that of the just.
On the philosophical concept of horizon see H. Kuhn: The Phenomenological Concept of Horizon, in M. Farber (ed.): Philosophical Essays in Memory of Edmund Husserl, 1940, 106–123.
Cf. M. Heidegger: Sein und Zeit, 7th ed. 1953, 8, 152 ff.
S. E. Toulmin: The Place of Reason in Ethics, 1950, 130.
On the problem of direct experience see B. Russell: An Inquiry into Meaning and Truth, 3rd impr. 1948, 236–246.
In scientific thought circulus vitiosus and regressus in infinitum are, of course, as far as possible to be avoided. This is because the existing order of scientific knowledge makes such resorts unnecessary. If they are nevertheless employed, the scholar is not taking full advantage of the existing system of scientific knowledge, or the particular science has not yet achieved the level of a systematic knowledge.
Cf. K. Jaspers: Von der Wahrheit, 1947, 398 ff.
P. Tillich: Love, Power, and Justice, 1954, 37; Toulmin, op. cit. 44 ff.
Cf. G. Santayana: The Realm of Essence, 1928, xiii: „The absolute truth has its own intangible reality and scorns to be known. The function of mind is rather to increase the wealth of the universe in the spiritual dimension, by adding appearance to substance and passion to necessity, and by creating private perspectives, and those emotions of wonder, adventure, curiosity and laughter which omniscience would exclude.”
Cf. W. Van Orman Quine: From a Logical Point of View, 1953, 19, who discussing the problem of ontology comes to the conclusion: „... the question what ontology actually to adopt still stands open, and the obvious councel is tolerance and experimental spirit.”
The logical paradoxes are an important theoretical subject of study but they are seldom of great practical significance. On the problem of logical paradoxes see generally C. I. Lewis and C. H. Langford: Symbolic Logic, 1932, 438–485
K. J. J. Hintikka: Identity, Variables, and Impredicative Definitions, 1956, 21, Journal of Symbolic Logic, 225–245. See also the forthcoming sequel of this article entitled „Vicious Circle Principle and the Paradoxes” in the same periodical.
On the significance of the experience of the painful for man’ intellectual pursuits see Th. Reik: Masochism in Modern Man (transl. by M. H. Beigel and G. M. Kurth, 2nd impr. 1949), 367–433.
On the significance of anxiety for the philosophical approach to reality see L. Lavelle: Le Moi et Son Destin, 1936, 65–117, esp. p. 77.
Cf. C. I. Lewis: Analysis of Knowledge and Valuation, 1946, 263: „All knowledge is knowledge of someone; and ultimately no one can have any ground for his beliefs which does not lie within his own experience.”
On the intersubjectivity of value-findings see Lewis, op. cit. 423, who uses the term „community” for what is termed „intersubjectivity” in the present inquiry. According to Lewis, the dichotomy „subjective-objective (including reference to community or idiosyncracy) “ should not be confused with the dichotomy „veridical-illusory”.
On the problem of human communication see K. Jaspers: Philosophic 2nd ed. 1948, 338–396; id.: Einführung in die Philosophie, 1950, 9 ff., 33, 36
J. Stone: Legal Controls of International Conflict, 1954, xli—xliii.
Cf. R. Polin: Against Wisdom, 1955, 16, Philosophy and Pheno-menological Research 1, at 16: „We cannot speak of a human nature as something given once for all but of a human nature growing truly in an unforeseeable becoming.”
Cf. G. Marcel: Being and Having, 1951, 106: „It may be of my essence to be able to be not what I am”
L. Lavelle: De l’Etre, 2nd ed. 1947, 125
G. Allport: Becoming, 1955, 19: „Personality is less a finished product than a transitive process” and p. 61: „The proprium is not a thing...”
Cf. W. Percy: Symbol as Hermeneutic in Existentialism, 1956, 16, Philosophy and Phenomenological Research, 522, at 528: „The Thou is at once the source of my consciousness, the companion and co-celebrant of my discoveiy of being — and the sole threat to my unauthentic constitution of myself.”
with the notion of the authentic Self cf. Jaspers’ notion of Existenz in K. Jaspers: Von der Wahrheit, 1947, 76.
Cf. St. Thomas Aquinas’ dictum in his Ethicorum Aristotelis ad Nicomachum Expositio, 8, 9, No. 1658: „Sed justifia consista in communicatione”
See L. Lavelle: De l’Intimité Spirituelle, 1955, 115.
For a philosophical analysis of the problem of anxiety see M. Heidegger: Sein und Zeit, 7th ed. 1953, 184–191.
On the notion of limit-situations see Jaspers: Philosophie, 467–512.
Cf. P. Tillich: The Courage to Be, 2nd impr. 1953, 13.
Cf. ibid. 23 ff.
On the ontology of anxiety and on the relations of anxiety to fear, emptiness, meaninglessnes, and despair see ibid. ch. ii, esp. pp. 36–39, 46–51, 54–57.
The metaphysical idea of boundless love invites man neither to acquiesce in the actualities of the evil nor into repose of contemplation. It is rather a principle of a „loving struggle”.
For a definition of „social” cf. J. Dewey: Theory of Valuation, 1939, 10 ff., according to whom „social” means that „there is a form of behaviour of the nature of interaction and transaction between two or more persons”.
Cf. the statement of the conventionalistic conception of the definition by F. Kaufmann: Methodenlehre der Sozialwissenschaften, 1936, 32 ff., 48.
Cf. J. Pieper: Über die Gerechtigkeit, 1953, 29 ff., 57.
Cf. N. Hartmann: Ethik, 3rd ed. 1949, 424, who styles justice as „Sachv erhaltswert”.
Like ontic individualities such as „Sokrates” or „this pen of mine” cannot completely be so defined.
On ostensive definitions see B. Russell: Human Knowledge, 1948, 78–86
L. Wittgenstein: Philosophical Investigations (transl. by G. E. M. An s comb, 1953), 4 ff., and Part I, passim.
On ostension as applied to „teaching” simple qualities see S. E. Toulmin: The Place of Reason in Ethics, 1950, 16: „Simple qualities are taught ‚ostensively‘, i. e. by pointing out or instancing... objects having the quality”; cf.
W. Van Orman Quine: From a Logical Point of View, 1953, 64–79, especially at 74–79.
See also A.-T. Kliimann: Öiguskord, 1939, 65–89, who in this book (Legal Order) written in the Estonian language employs ostensive references for defining the concept „legal order”.
Cf. J. Stone: Legal Controls of International Conflict, 1954, 53 ff.
Cf. E. Wolf: Das Problem der Naturrechtslehre, 1955, 88.
Cf. E. Brunner: Gerechtigkeit, 1943, 20–23, esp. p. 22; „In diesem ‚gehört‘ steckt das ganze Pathos der Gerechtigkeit.” Cf. also Pieper, op. cit. 11–28.
On the concept of „indeterminate reference” see J. Stone: The Province and Function of Law, 2nd ed. 1950, 185 ff.
On the problem of the indeterminate in justice see E. N. Garlan: Legal Realism and Justice, 1941, 54–74
H. Kelsen: What Is Justice? 1957, 13–18.
On the relations between equality and justice cf. H. Nef: Gerechtigkeit und Gleichheit, 1941, passim
W. D. Lamont: Principles of Moral Judgment, 1946, 134–148
A. Ross: Towards a Realistic Jurisprudence, 1946, 145.
For a view that „order” is an essential of „justice” see Brunner, op. cit. 19–22.
Cf. B. N. Cardozo: The Paradoxes of Legal Science, 2nd impr. 1930, 44.
On the obligative-pretensive relations in general see I. Tammelo: Untersuchungen zum Wesen der Rechtsnorm, 1947, 79–81; 89 ff. Cf.
A. Reinach: Zur Phänomenologie des Rechts, 1953, 21–86.
For an analysis of right-duty relationship cf. also H. L. A. Hart: Are there Natural Rights? 1955, 64, Philosophical Review, 175, at 177–182. The obligative-pretensive relation can be analysed into the following components: duty, claim, conduct, duty-subject, claim-subject, and considering (or attribution). Of these components conduct, duty-subject, claim-subject, and also the obligative-pretensive relation as a whole, seem to conform to the just. The object to which justness directly adheres is, however, conduct. A duty-subject, a claim-subject, or an obligative-pretensive relation may be deemed to have justness if the respective obligated or claimed conduct is deemed to have justness. Neither the obligated and the claimed conduct nor the obligative-pretensive relation need to be actual conduct or an actual relation. Thus we may speak of justness and of justice also with respect to possible conduct and relations, for instance when we expect that something should be just or we contend that something would be just de lege feranda.
On the bilaterality of justice see G. Del Vecchio: Justice (ed. by A. H. Campbell, 1952), 83.
Legal relations are obligative-pretensive relations par excellence. Apart from these, there are also obligative-pretensive religious and moral relations. Thus man may be regarded as having duties towards God, and God may be regarded as having claims with respect to these duties; and thus, from religious points of view man can be considered just or unjust according to how he behaves with respect to these duties and claims. Even God may be regarded as having duties and man corresponding claims, and thus God may be praised as being just. Of the moral relations, for example, telling the truth may be conceived as an obligative-pretensive relation: there is a moral duty to be truthful (if higher moral considerations do not forbid it), and there is a corresponding claim to this duty.
On the relation between divine law and justice see Brunner, op. cit. 54–64.
See the dictum of Iavolenus in D. 50, 17, 202: „Omnis definitio in iure civili periculosa est: parum est enim, ut non subverti posset.” On the problem of the definition in law see H.L. A. Hart: Definition and Theory in Jurisprudence, 1954, 70, Law Quarterly Review, 37–60.
On the difficulties and dangers in defining (especially in relation to legal terms) see S. I. Shuman: Jurisprudence and the Analysis of Fundamental Legal Terms, 1956, 8, Journal of Legal Education, 437–467, at 439–443.
Cf. Benjamin N. Cardozo’s remarks on the related matter in Cardozo, op. cit. 35 ff.
On the criteria of justness cf. J. Stone: The Province and Function of Law, 2nd. ed. 1950, 212, 375; id., Legal Controls of International Conflict, 1954, 54 ff.
See G. Radbruch: Rechtsphilosophie, 4th ed. 1950, 146–155
On the problem of type concepts see A. Koort: Beiträge zur Logik des Typusbegriffes, in Acta et Commentationes Universitatis Tartuensis, B. Humaniora, 1936, vol. XXXVIII, 4; 1938, vol. XXXIX, 1.
Thus collectivistic outlook can be universalistic, nationalistic, or one springing from group alignments smaller or larger than nation (provincialism, racialism, etc.).
Cf. G. H. Mead: Mind, Self and Society, 1934, 319.
Thought becomes objectivised in a complete act of communication. In such act the expression of a thought of the addresser is apprehended by the addressee as a sign of this thought and re-thought by him as the signification of this signum. Only expressions in a permanent form constitute what is called „objective criteria of justness”. Such criteria are objectivised, for example, in the expressions of positive law rules, written or unwritten. In the case of unwritten law, the expression of the criteria of justness consists in repeated patterns of manifested behaviour. Becoming objectivised, a thought becomes separated from its author, and starts an existence of its own, dependent on the social facts in the context of which it occurs. Positive law, too, as a set of norms providing criteria of justness is subject to all the vicissitudes of the objectivisa-tion of thought. On the phenomenon of the objectivisation of thought see N. Hartmann: Das Problem des geistigen Seins, 2nd ed. 1949, 406–564.
Cf. St. Thomas Aquinus: Summa Theologica, I—II, 96–4.
On these phrases see, for example, R. Pound: Justice according to Law, 1951, Part 3
R. F. V. Heuston (ed): Salmond on the Law of Torts, 11th ed. 1953, 31; and Bayley, J. in Bromage v. Prosser, 1925, 4 B. & C. 255.
On the relation between justice and law cf. E. N. Garlan: Legal Realism and Justice, 1941, 21: „Not all law is just nor is justice law... Law may be either just or unjust; both judges and laws miss the mark, become petrified, and fail to meet needs. But law and justice cannot be intelligibly separated into radically different categories. They are distinctions within a common process, and neither can be entirely understood apart from the other. Law itself, apart from justice, is a blind mechanism and dangerously lunatic; justice apart from its potential embodiment in law, is idle fancy.” See also ibid. 131: „... the idea of justice is the entelechy of law...” „... justice is the teleological aspect of law.”
See G. Del Vecchio: Lehrbuch der Rechtsphilosophie, 2nd ed. edited and transl. by F. Darmstaedter, 1951, 589, quoting Cicero.
For a contemporary conception of the nature of man see P. W. Kurtz: , 1956, 17, Philosophy and Phenomenological Research, 36, at 42 ff. and passim.
On the nature of things as a legal-metaphysical problem see G. Radbruch: Die Natur der Sache als juristische Denkform, in Festschrift zu Ehren Rudolf Launs, 1948, 157 ff., esp. 162.
See also E. Fechner: Rechtsphilosophie, 1956, 146–151.
See K. Jaspers: Von der Wahrheit, 1947, in which work this is a recurrent thought.
See also L. Lavelle: Traité des Valeurs, 1953, vol. I, 661.
On this variety see H. Ryffel: Naturrecht, 1944, 37–129
J. Messner: Das Naturrecht, 1950, 83–95. Cf.
A. Brecht: Relative and Absolute Justice, in M. D. Forkosch (ed.): The Political Philosophy of Arnold Brecht, 1950, 21–48, at 26. On the ambiguity of the notion „natural law”
see E. Wolf: Das Problem der Naturrechtslehre, 1955, passim.
On the problem of human rigths see UNESCO’s symposium: Human Rights, 1949; G. Jellinek: Die Erklärung des Menschen- und Bürgerrechtes, 4th ed. 1927
J. Maritain: Les Droits de l’Homme et la Loi Naturelle, 1945
H. Lauterpacht: International Law and Human Rights, 1950.
On the relation of these principles of judicial impartiality and fairness to justice see Garlan, op. cit. 76–88.
Cf. L. L. Fuller: American Legal Philosophy at Mid-Century, 1954, 6 Journal of Legal Education, 457, at 481, who says that „If there are constancies and regularities that persist through a change in social forms these must reflect some constancy in the nature of man himself”. On Fuller’s conception of the nature of man see ibid. 472 ff.
Cf. H. Kelsen: What Is Justice? 1957, 7.
The sense of axiotic evidence becomes dimmed in the contrary process of the breakdown of human communication. It need not, however, be affected by the violation and defiance of the principles in question. In them it rather may become accentuated.
For a list of writers who have offered absolute standards of justice in our century and for concise presentation of their respective views see A. Brecht: Representative Advocates of Absolute Principles, in Forkosch (ed.), op. cit. 83–94.
Cf. the words of Paul Valéry about „the real in its pure state” expressed in his book Eupalinos, 1924, 53: „Le réel, à l’état pur, arrêt. instantément le coeur... Une goutte suffit, de cette lymphe glaciale, pour détendre dans un âme, les ressorts et la palpitation du désir, exterminer toute espérances, ruiner tous les dieux qui étaient dans notre sang.”
The road of human endeavour leading towards final understanding and towards realisation of worthwhile values appears to be always devious. Home viator can strive for certainty only through doubt, for a fuller apprehension and realisation of values only through less complete apprehension of them. He must meet limit-situations to surmise the depths of his existence, must experience failures of his empirical Self to move towards the horizon of his authentic Self and must perhaps know forsakenness to find God.
See A. Denning: The Road to Justice, 1955, 4.
It may be noted that judges are generally reluctant to assume the responsibility of applying their subjective criteria of justness. As Helen Silving has rightly observed „a judge will more readily include in his decisions not supported by positive authority... the ‚law of reason‘ or ‚law of nature‘... It is easier for him to say ‚natural justice demands‘ than to say ‚I believe it to be right‘“. See her article: The Twillight Zone of Positive and Natural Law, 1955, 43, California Law Review, 477, at 497 ff.
A further significance of the arbiters of justice as men who occupy high judicial positions in a State lies in their role of the so-called social engineering. Insofar as they actually are men of high mental qualities, they may be trusted to take due notice of social interests pressing for recognition, to weigh them properly, and to give them legal effect in disputes about justice. These men — to use the words of Arthur E. Sutherland — „save us as individuals from our collective hasty intemperance or, more frequently, from our own simple lack of foresight. Amid the clamour and contention of the crowd it is a comfortable thing that we still have the wisdom to set apart for ourselves these calm judicial guardians, whose duty it is always to seek the just rule for our common lives”. See his work The Law and One Man among Many, 1956, 97. We are still far from being able to perform the tasks of social engineering by completely rational methods. But intuitive faculties of trained and sincere minds may give satisfactory ad hoc solutions for the problem how to shape our social life. On the concept of social engineering see R. Pound: Interpretation of Legal History, 1923, 152–165; id.: An Introduction to the Philosophy of Law, 2nd ed. 1954, 47; Stone: Province, 771 ff., 782; R. Field and S. P. Simpson: Social Engineering through Law..., 1947, 22, New York University Law Review, 145–193.
A person who is a genius in certain respect may be completely incapable and unreliable in other respects. It is not even precluded that a person who may be regarded as a genius is affected by insanity.
On these principles see Denning, op. cit. 10–32.
On the psychology of justice cf. the section entitled „Die Psychologie des Rechtsmenschen” by G. Radbruch in his treatise Rechtsphilosophie, 4th ed. 1950, 196–204.
On the psychodynamics of the ideas of justice see J. Piaget: Le Jugement Moral chez l’Enfant, 1932, 225–373
F. R. Bienenfeld: Rediscovery of Justice, 1947, esp. pp. 18–55.
See also W. D. Lamont: The Principles of Moral Judgment, 1946, 137 ff.
He is intimately a part of it like a raindrop on a leaf, a tree in the garden, or a bird in the air.
On justice and the relations between children and parents see Bienen-feld, op. cit. 27–40. On justice and the relations between children and their brothers and sisters see ibid. 18–27.
The most important role in the children’s death wishes is played, according to Wilhelm Stekel, by poison. See his treatise Compulsion and Doubt (transl. by E. Gutheil, 1950), vol. II, p. 551.
Cf. G. Allport: Becoming, 1955, 28: „... at the age of two the child is, when measured by standards applied to adults, an unsocialised horror.”
On the arisal of Superego through the mechanism of introjection see, for example, O. Fenichel: The Psychoanalytical Theory of Neurosis, 1945, 109, 470.
On the growth of conscience see Allport, op. cit. 68–74. On the infantile conscience see E. H. Erikson: Kindheit und Gesellschaft, 1957, 236. Erik s on says that the fact that human conscience remains partially infantile throughout the entire life of man is the core of the human tragedy. For the psycho-analytical conception of the development of conscience see Fenichel, op. cit. 102–113.
On conscience in relation to ethics see E. Fromm: Man for Himself, 1947, 141–172.
On the significance of the phenomenon of anxiety („fear”) for man’s social behaviour and for his attitudes to justice see H. Kelsen: What I. Justice? 1957, 22 ff.
On the Superego („conscience”) in relation to man’s social behaviou see R. West: Conscience and Society, 1945, passim. See also A. Campbel Garnett: The Moral Nature of Man, 1952, 161–165, esp. at 163.
Cf. the conception of justice in Plotinus, according to whom justice means doing one’s work and fulfilling one’s task. See R. Harder (ed.): Plotins Schriften, 1930, vol. I, p. 187, and the Platonic conception of justice as doing one’s task (see supra s. 4).
For a concise statement of the Freudian mechanisms see S. H. Kraines: The Therapy of the Neuroses and Psychoses, 2nd ed. 1943, 56–84.
On „everydayness” as a mode of inauthenticity see M. Heidegger: Sein und Zeit, 7th ed. 1953, 126–130; 167–180. His terms for the specific modes treated in the text are „das Gerede” („mere talk”), „das Man” („the one”), and „die Neugier” (or rather „die Neugier”, meaning the craving and seeking for novelty).
And upon Nothingness. See for the basic question of metaphysics as conceived by Martin Heidegger: „Warum ist überhaupt Seiendes und nicht vielmehr Nichts?” in his work Einführung in die Metaphysik, 1953, 1–39, in which pages the question occurs as a recurrent theme.
As typical contemporary works expressing anti-metaphysical attitudes see H. Reichenbach: The Rise of Scientific Philosophy, 1951, esp. 3–114; A. J. Ayer: Language, Truth and Logic, 1948
J. Wisdom: Other Minds, 1952, esp. the essay Metaphysics, pp. 236–259.
Cf. S. E. Toulmin: The Place of Reason in Ethics, 1950, 209.
See, for example, V. Lundstedt: Law and Justice, in P. Sayre (ed.): Interpretations of Modern Legal Philosophies, 1947, 450–483, esp. p. 450.
In a world which he has not chosen but in which he finds himself and to which he has to adapt himself by modifying things-in-the-world and himself as a man-in-the-world. Cf. in this context Heidegger’s notion of „thrownness” (Geworfenheit) in his treatise Sein und Zeit, 7th ed. 1953, 175–180.
Cf. O. Brusiin: Über das juristische Denken, 1951, 4: „Der Mensch ist ein Wesen, das ein fundamentales Bedürfnis hat, sich auf überempirisches, objektiv nicht Verifizierbares zu beziehen.” Cf. also ibid. 12, 154, 162.
And cf. E. Fechner: Rechtsphilosophie, 1956, 278 ff.
Ph. Lersch: Aufbau der Person, 1951, 131–157.
The phrase „ek-stasis of his noumenal Self” is intended to convey that this Self is an entity of assymptotic, or rather periechontological character. The noumenal Self is the surmised entity to which the empirical Self, that is, our consciousness as it exists in our actual experience, can only infinitely approach but which it can never reach. In certain mental conditions, man may have the impression that his mind has effected a „break-through” and apprehended his noumenal Self or has become „one” with it. This condition has been denoted by the notion „ecstasy”. The metaphysical notion of ek-stasis has, however, no essential connection with the notion of ecstasy. It is based on the original intuition of „ek-”‘, which signifies „outside”, and „stasis”, which signifies „standing”. With this original intuition of the word the idea of the assymptotic or periechontological character of the standing-outside is connected in the notion „ek-stasis”. With the notion „ek-stasis” as understood here cf. Karl Jaspers’ notion „Existenz” in his treatise Von der Wahrheit, 1947, 76. On the conception of periechontology see ibid. 160.
On the emptiness of these rules see H. Kelsen: What Is Justice? 1957, 13–18.
On the Golden Rule see P. Tillich: The New Being, 1955, 30–33. According to Tillich, „Love makes justice just” (p. 32) and „makes Golden Rule possible” (p. 33).
This pathos is particularly manifest in the works of the Scandinavian legal realists. See, for example, A. Hägerström: Inquiries into the Nature of Law and Morals (ed. by K. Olivecrona, transl. by C. D. Board, 1953)
A. Ross: Towards a Realistic Jurisprudence, 1946; V. Lundstedt, article cited supra n. 323.
The hyphenation in „hypo-thesis” is employed to indicate that the word occurs here as signifying a proposition (thesis) which is under or below (hypo-) the level of ordinary propositions. This being „under” or „below” is significant in two respects: (1) In contrast to ordinary propositions, metaphysical propositions are unverifiable on principle. Hypotheses as employed, for example, in science are always verifiable at least on principle, and the efforts of scientists are directed to their conversion into proven propositions. (2) Metaphysical propositions as hypo-theses refer to circumstances which are, in a certain sense, underlying the phenomenal world. The word „hypo-thesis” is thus linked with the word „understanding”, which in the present essay has been employed to refer to an awareness which is not a full cognitive awareness but which nevertheless is a basic cognitive state of the mind.
Cf. Edmund Husserl’s characterisation of phenomenological philosophy as „man’s whole occupation with himself in the service of universal reason” See E. Hu(sserl), sub voce „Phenomenology” in Encyclopaedia Britannia, 1953, vol. XVII, p. 702.
To use a phrase of Louis Lavelle. See his work De l’Intimité Spirituelle, 1955, 31, and note the title of this work.
Cf. A. N. Whitehead: Essays in Science and Philosophy, 1947, 77 ff., 106.
Cf. ibid. 122.
Cf. L. L. Fuller: The Law in Quest of Itself, 1940, 109.
On „pointing beyond”, surmising, and understanding cf. L. Wittgenstein: Philosophical Investigations (transl. by G. E. M. Anscomb, 1953), 83 ff., §§-208–210, p. 89 §-245, p. 143 §-527.
On „intimating” cf. Wittgenstein, op. cit. 87 §-237.
On the idea that justness is an essential quality of gods in Greek religion see H. Kelsen: Society and Nature, 1943, 187 ff.
A phrase of Jean-Paul Sartre. See his treatise L’Etre et le Néant, 41st ed. 1953, 515.
On the problem of meaninglessness see M. White: Toward Reunio: in Philosophy, 1956, 101, 104.
This is the principal theme in M. Heidegger: Was ist Metaphysik 1929.
On the problem of the Absolute see F. H. Bradley: Appearance an Reality, 9th impr. 1930, 403–452.
Cf. A. Campbell Garnett: The Moral Nature of Man, 1952, 41.
Struggle is, according to Karl Jaspers, one of the so-called limi situations. See his treatise Philosophic 2nd ed. 1948, 494–505. See al. L. Lavelle: Le Moi et Son Destin, 1936, 111.
Cf. Gustav Radbruch’s view on the relation between democracy and relativism expressed in his treatise Rechtsphilosophie, 4th ed. 1950, 84. Cf. also Kelsen: What Is Justice? 23 ff. And cf. A. Boyce Gibson: Should Philosophers Be Kings? 1939, 30.
In seeking a historical basis for the idea of Cura in the thoughts of ancient philosophers, I may quote Alfred North Whitehead’s apt remark to be found in his work cited supra n. 332, p. 84: „The systematic thought of ancient writers is now nearly worthless; but their detached insights are priceless.”
For notions in contemporary philosophy that have a similarity with the notion of Care outlined in the text see, for example, „Sorge” in Heidegger: Sein und Zeit, 191–196; „the generalised, non-specific urge to creative and experimental living” in Campbell Garnett, op. cit. 148; „the All-Benevolent Will” in B. Perry: General Theory of Values, 1926, 682–687. Cf. also John Dewey’s notion „caring-for” in his essay The Field of ‚Value‘, in R. Lepley (ed.): Value, 1949, 64–77, at 67 ff.
On „concern” as an important quality of human life see C. I. Lewis: An Analysis of Knowledge and Valuation, 1946, 479.
Cf. Lavelle: Le Moi et Son Destin, 96: „L’intimité même de l’Etre ne se livre à nous que dans le Souci.”
Cf. Whitehead, op. cit. 125.
The notion „boundless Care” — like, for example, the notions „authentic Self”, „Being”, and „the Absolute” — is periechontological denoting entities which encompass the finite minds like horizons and are cognitively transcendent to them. As a periechontological notion, „boundless Care” is not capable of supporting steps of scientific reasoning. But even so it is not an irrelevant notion. It is capable of being an entity to which the inquirer’s emotive and conative attention can be attached in his effort to advance knowledge and thereby other worthwhile aims. It carries the idea of a call for the attitudes which the enlightened man has learnt to treasure as essential for realising values of high axiotic dignity. Even though the notion „boundless Care” cannot be a bridge to anything, as the notions of empirical contents can be in syllogistic reasoning, it can serve us as an arrow carrying us towards what may lie as values in our cognitive, emotive, and conative horizons. On the impossibility to define the notion „boundless Care” cf. P. Tillich: Love, Power, and Justice, 1954, 3, who submits that the root meaning of love cannot be defined, but „must be described in its qualities and expressions”.
Ultimate justice as divine justice is beyond man’s understanding; it is something „hidden in the mysterious wisdom of God”. See Kelsen’s exposition of St. Paul’s conception of divine justice in his work What Is Justice? 12 ff. On the notion of divine justice see also G. Del Vecchio: Justice Divine et Humaine, 1955, 9, Revue Internationale de Defense Social, 1–10
E. Brunner: Gerechtigkeit, 1943, 54–64. And see Tillich: Love, Power, and Justice, 66: „God is not bound to the given proportion between merit and tribute. He can creatively change the proportion, and does it in order to fulfil those who according to proportional justice would be excluded from fulfilment. Therefore the divine justice can appear as plain injustice.”
With the characterisation of Cura as Caritas sapientis cf. W. Fuchs: Neoklassik in der Rechtsphilosophie, 1954, 92. Cf.
also L. Lavelle: De l’Etre, 2nd ed. 1947, 34.
On the notion of amor amicitiae see Duns Scotus: Opus Oxoniense, III, d. 27, qu. 1, n. 17; IV, d. 49, qu. 5, n. 3. See also id., II, d. 6, qu. 2, n. 3.
Cf. Lavelle: Le Moi et Son Destin, 128: „Il est secret parce qu’il veut que nous le cherchions. Mais s’il se cache, ce n’est pas pour nous dammer, c’est pour nous animer.”
On the relations between justice and grace see G. Radbruch: Rechtsphilosophie, 4th ed. 1950, 337–343.
Cf. Deuteronomy, 5, 8 (Second Commandment). Cf. also the comparison of God’s word with a falling star in M. Buber: Einsichten, 1953, 27.
Looking back I also notice that I have not wielded the Occam’s Razor as much as it could have been used. It seems that an inquiry into the fundamentals of justice of the same scope as the present one could be carried out by resorting to fewer „entia”, that is, to fewer principles and notions than were resorted to here. However, I am not sure whether this would promote the clarity of presentation in the present scholarly situation in view of the fact that little attention has been paid to the research of the fundamentals of justice. Occam’s Razor can be successfully and extensively used only where there has already been a considerable rational penetration into a field of knowledge.
On the relations between the Summum Bonum and justice cf. W. Fuchs: Neoklassik in der Rechtsphilosophie, 1954, 1–60. Note especially this writer’s critical remark that in Radbruch’s doctrine of justice the bonum has been a great mystery, a Noli me tangere, almost something uncanny (Unheimliches), something numinous, p. 4.
With the notion of Care cf. the notion of agape as understood by P. Tillich: Love, Power, and Justice, 1954, 119. Cf. also Tillich’s notion of creative justice, the functions of which are listening, giving, and forgiving, p. 84.
Cf. P. W. Kurtz: Human Nature, Homeostasis, and Value, 1956, 17, Philosophy and Phenomenological Research, 36, at 57.
See A Bacon: De Interpretatione Naturae Proemium in Works, ed. by J. Spedding et al., 1887, vol. III, p. 518 ff.: „Me ipsum autem ad veritatis contemplationes, quam ad alia, magis fabrefactum deprehendi; ut qui mentem et ad rerum similitudem (quoad maximum est) agnoscendam satis mobilem, et ad differentiarum subtilitates observandas satis fixam et intentam haberem; qui et quaerundi desiderium, et dubitandi patientiam, et meditandi voluptatem, et asserendi cunctationem, et disponendi sollicitudinem teuerem; quique nec novitatem affectarem, nee antiquitatem admirarem, et omnem imposturam odissem”. For an analogous description of the „philosophic mind” see A. Boyce Gibson: Should Philosophers Be Kings? 1939, 9–13.
Cf. P. Tillich: The Courage to Be, 2nd ed. 1953, 158: „Doubt dissolves the veil of Maya, it undermines the defense of mere opinions against ultimate reality.”
Cf. Gordon Allport’s remarks on dogmatism made in his essay Becoming, 1955, 17 ff. Cf. also R. Polin: Against Wisdom, 1955, 16, Philosophy and Phenomenological Research, 1, at 11.
Cf. L. Lavelle: Le Moi et Son Destin, 1936, 112 ff.
L. L. Fuller: American Legal Philosophy at Mid-Century, 1954, 6, Journal of Legal Education, 457, at 480.
On this doubt see George Santay ana’s delightful pages in his book Scepticism and Animal Faith, 4th impr. 1936, 1–41.
For this discussion of the criteria of reasonableness I have received essential stimulus from my friend Dr. Stevan Glichitch of the Faculty of Law of Sydney University.
These questions were: „Is there justice, and if there is, what is it?”, „Can justice be known, and if it can, how?”, „Ought justice to be done, and if it ought, when?”
Cf. Gustav Radbruch’s view (Rechtsphilosophie, 4th ed. 1950, 173) that philosophy ought not to make life easy but problematic.
At the end of this inquiry I feel I should indicate what I apprehend the solution of the case to be the facts of which I stated at the beginning of my First Discourse. On the basis of the foregoing study, the following can be said about this case: The eviction of the poor man was ostensibly just by reference to the criteria of justness objectivised in the norms of the positive law under which the eviction order was made. If it be assumed that the defendant attempted to found his opinion that he was unjustly treated on any axiotic principles at all, the decision was not just by reference to the defendant’s subjective criteria of justness. Provided that the court’s decision could not be based on the defendant’s deserts (merits) properly so called but rather on mercy, pity, or charity that a public authority ought to have displayed, his proper complaint would have been that he was not charitably, or equitably (in the legal-philosophical sense) treated. If the judge had the power to give a charitable (an „equitable”) relief to the defendant, his failure to do so seems to reflect, prima facie, adversely on his moral qualities. If he did not have such power, it could be expected that in considering the case he experienced Care, and made his decision reluctantly, with a heavy heart.
Cf. Lord Justice Morris: The Spirit of Justice, 1954, 4.
Cf. H. Fingarette: Psychoanalytic Perspective of Moral Guilt, 1955, 16, Philosophy and Phenomenological Research, 18, at 32.
The craving for justice, the consciousness of a need for justice appears to be co-present with man’s being in the world. Cf. A. E. Sutherland: The Law and One Man among Many, 1956, 94: „After all, man has survived — thus far — and surviving, is still conscious of a need for justice. The very presence of this aspiration, its continuance through all disappointment and doubt, should be a reason for our abiding wonder.” The wonder to which Professor Sutherland refers is, as I understand, essentially also philosophical wonder; it is the wonder that poses philosophical problems of justice and calls for inquiries into the fundamentals of justice.
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Dedicated to the memory of Gustav Radbruch
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© 1959 Springer-Verlag Wien
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Tammelo, I. (1959). Justice and Doubt. In: Justice and Doubt. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-39864-7_1
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