Abstract
One reason for familiarising oneself with definition theory is the significance of such theory for the determination of which type of proposition one is confronted with, both when it comes to propositions that one sends and propositions that one receives: Is one confronted with a definition, a characterisation, or an analytically un/true proposition?
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References
See also section 2.3 (1) below, oncluing remarks. — The other source of pseudo dis/agreement in a special position when it comes to factual significance is the confusion of descriptive and normative propositions, or lack of clarity about the relationship between them. Compare section I 3 (1)-*(2) above. — In the sentence at the present note and in some cases otherwise I use the term “thing” in a very wide sense: of what is covered by the meanings of linguistic entities (covered by concepts), without any further delimitations.
Abelson, ‘Definition’.
Op. cit., pp. 314–21.
Op. cit., pp. 321–23.
In the present context I content myself with the formulation “to define concepts of ‘definition’ ’ ”. For an analysis of what may lie in this formulation, see the present section B in its entirety, and section B 9 for a summary. — On factors that can explain the fact that one understands the definition problem as “the same”, see section 4.3.3 (3)(b) below.
Popper, The Open Society and Its Enemies, Vol. 2, p. 10.
Popper, Unended Quest, pp. 17 et seq.
Op. cit., p. 19 (Popper’s italics omitted).
Popper, The Open Society and Its Enemies, Vol. 2, p. 14.
Op. cit., p. 12.
On this fundamental viewpoint, see section III 2.2.2 (3)(a) below, with further references.
Astrup Hoel, Den moderne retsmetode [the modem legal method], p. 19.
Loc. cit. Compare also the formulations “the legal concept problem” (p. 18); “how in more detail a logically tenable determination of concepts is to be realised” (p. 42); “the modem concept principles” (p. 46, cf. pp. 43 et seq., 84, 86); “errors that mark the irrational determination of concepts” (pp. 3539).
Purely linguistically it might have been logical to use the set of terms “univocalness”, “equivocalness” and “multivocalness” instead of “unambiguity”, “ambiguity” and “polysemy”. However, the latter set of terms is standard in linguistics and semantics, see e.g. Lyons, Semantics, Vol. 2, pp. 396409, 550 et seq. I therefore stick to this set.
The last-mentioned dimension will later be discussed as a separate topic (see particularly sections 3.2.2 cf. 6.2). — The dimensions of indeterminacy mentioned represent a set of potential problems in the interpretation and application of language in general. These dimensions have relevance in particular in relation to lawyers’ language and argumentation, in that interpretation and application of formulations of legal rules systematically confront the lawyer with indeterminacy in these dimensions. — Waismann operates with an indeterminacy dimension that he calls “open texture” (“Porosität der Begriffe”), see ‘Verifiability’, p. 119. However, I do not consider Waismann’s concept so apt in relation to actually occurring language (section 6.2 (3)(a) below), and therefore do not introduce the concept as a separate indeterminacy dimension here. — Out of consideration for readability and normal language usage, I use in some places “lack of clarity” and “clarity” instead of “in/determinacy”; see particularly Chapter IV.
For a general treatment of normative orientation in modern theory of science, including definition theory, see e.g. Essler, Wissenschaftstheorie I: Definition und Reduktion, pp. 14–15. For a treatment of some of the particular manifestations, historical and modern, of normative orientation, see Robinson, Definition on the assertion that connotation determines denotation (pp. 114–15); on tendencies to underestimate the significance of ostensive definitions (pp. 122–23); on definition of the concept of ‘definition’ by means of the concept of ‘logical equivalence’ (pp. 132–35, cf. 144); on one-sided concentration on some methods of definition at the expense of others (p. 145). I shall come back to actually occurring analysis and argumentation in relation to the first two issues mentioned (in respectively sections 5.1 (3) and 6.1 (2)(c) below, and section 5.2 (6) below).
Ekelöf, ‘Juridisk slutledning och terminologi’ [legal inference and terminology], p. 243.
Since immediately below I shall also be drawing on a Norwegian writer, I shall for the sake of simplicity use the Norwegian term “definisjon” as a common Scandinavian term.
Ekelöf, ‘Juridisk slutledning och terminologi’ [legal inference and terminology], pp.261 (bottom)-262 (top), 264 second paragraph; see also p. 255 (bottom).
Eckhoff, ‘Anmeldelse av Ekelöf, Valda shifter 1942–1990’ [review of Ekelöf, selected writings 1942–1990], pp. 187–88. See also p. 189, where Ross’ method of analysis of the use of terms relating to rights is likewise designated “substitusjonsmetode”.
Hart, The Concept of Law, 1st ed. p. 16; 2nd ed. loc. cit.
Llewellyn, ‘A Realistic Jurisprudence — The Next Step’, p. 3.
Arnold, The Symbols of Government, p. 36.
Op. cit., p.49; cf. pp. 34–36, serving as grounds for the proposition quoted in the text at the preceding note.
Arnold uses “contradictory” not only of incompatibility of a formal-logical kind, for example, where the law says that the judge both shall and shall not safeguard consideration for predictability, but also of incompatibility of a practical kind, i.e. where the many “symbols and ideals” of the law indicate different conclusions when they are applied to the same individual instance (for example, where consideration for predictability indicates that the judge should follow a previous judgment, while consideration for concrete reasonableness indicates a different conclusion). — Compare Nietzsche, Zur Genealogie der Moral, p. 820: “[D]ie bisherige Geschichte der Strafe überhaupt, die Geschichte ihrer Ausnützung zu den verschiedensten Zwecken, kristallisiert sich zuletzt in eine Art von Einheit, welche schwer löslich, schwer zu analysieren und, was man hervorheben muß, ganz und gar undefinierbar ist. (Es ist heute unmöglich, bestimmt zu sagen, warum eigentlich gestraft wird: alle Begriffe, in denen sich ein ganzer Prozeß semiotisch zusammenfaßt, entziehn sich der Definition; definierbar is nur das, was keine Geschichte hat.)” (Nietzsche’s italics; his second italics omitted). — Whether it is true that ‘law’ (cf. Arnold) and ‘punishment’ (cf. Nietzsche) cannot be (descriptively) defined through condition-structuring of the concept criteria, is something on which I do not take any standpoint. The topic here is simply the writers’ (presupposed) definition concept: the fact that they presuppose condition-structuring as a necessary criterion in the case of their concepts of ‘definition’.
Posner, The Problems of Jurisprudence, p. 368.
Loc. cit.
Hohfeld, Fundamental Legal Conceptions, p. 36.
Summers, ‘The General Duty of Good Faith’, pp. 817–18.
Gyldendals fremmedordbok [Gyldendal’s dictionary of foreign words]: “definere [to define]… n0yaktig [exact]…”; Norsk riksmdlsordbok [Norwegian Riksmâl dictionary]: “definere… i kort og konsis form [in a brief and concise form]… slik at det ikke kan forveksles med andre [so that it cannot be confused with others]… angi det vesentlige [to specify the essential]”; The Concise Oxford Dictionary “define… exact…’; Wahrig, Deutsches Wörterbuch: ”definieren… genau….
Frege, ‘Frege on Definitions — I’, p. 139: “A definition of a concept… must unambiguously determine, as regards any object, whether or not it falls under the concept.” — In relation to such requirements, the vast majority of actually occurring meaning determinations outside logic and mathematics fall short; see for illustration the present section B in its entirety.
Carnap, ‘Testability and Meaning’, pp. 439–41, 448–50; ‘The Methodological Character of Theoretical Concepts’, p. 69. — With such a concept of ‘definition’, many actually occurring meaning determinations outside logic and mathematics fall outside; see for illustration the present section B in its entirety.
Næss, Interpretation and Preciseness, pp. 147–48 (on normative definitions) and 169–70 cf. 266 (on descriptive definitions). See also En del elementcere logiske emner [some elementary topics in logic], p. 43; Logikk og metodelære [logic and methodology], p. 101. — With such a concept of ‘definition’, inter alia many meaning determinations in dictionaries fall outside, in that they only specify meaning alternatives, without specification of person or situation; see Interpretation and Preciseness, p. 170. — In relation to a general concept of ‘rule’ many lawyers will probably lay down requirements concerning the specification of person or situation corresponding to those Næss lays down for definitions, cf. Pound, An Introduction to the Philosophy of Law, p. 56: “Rules, that is, definite, detailed provisions for definite, detailed states of fact,…’; Llewellyn, The Common Law Tradition, p. 343: ”The most obvious… is that a “rule” never rises to the full level of a rule, at all, except insofar as its sphere and criteria of application achieve a moderate clarity“; Schauer, Playing by the Rules, pp. 118–19: ”Rules necessarily specify the scope of their application… the rules of law necessarily specify the people and places to whom their requirements attach….
See remarks in my (first) sentence preceded by a dash in each of the notes 24–26.
Gyldendals fremmedordbok “definere [define]… beskrive [describe], karakterisere [characterise]”; Norsk riksm1lsordbok “definere… ofte næsten svarende til beskrive, karakterisere [often almost corresponding to describe, characterise]”; The Concise Oxford Dictionary “definition… a statement of… the nature of a thing”; Wahrig, Deutsches Wörterbuch: “definieren… erklären”.
Robinson, Definition, pp. 149–92, maps different ways of using the term “real definition”. On ways of using this term that include characterisations, see pp. 156–57,161–70,171–78,187.
Næss, Interpretation and Preciseness, p. 173. The definition quoted is also essentially taken as a basis in Democracy, Ideology and Objectivity, supplemented with a further requirement (p. 29): “The characteristics mentioned in the description should be of special importance to the understanding and manipulation of the denotata of the concept.”
Næss, Interpretation and Preciseness, p. 144.
Goffman, The Presentation of Self in Everyday Life, pp. 13, 13–27, 246 et passim. The references in parentheses in the rest of the paragraph are to this book.
Robinson, Definition, p. 178: “[T]he confusion between the analysis of things and… definition of words has been by far the most damaging error in the theory of definition, and among the most damaging errors in the whole of philosophy.”
See e.g. Næss, as quoted in item (1) above, in the text at note 31; Ajdukiewicz, ‘Three Concepts of Definition’, pp. 115–16.
For a survey of the ways in which the term “real definition” is used, see the reference in item (1) above, in note 29.
The present section B in its entirety, with further references to other parts of the work: see in particular sections F and III 2, below.
See e.g. von Wright, Norm and Action, pp. 70–71; Sundby, Om normer [on norms], p. 29; Eckhoff/ Sundby, Rettssystemer [legal systems], 1st ed. p. 54.
When one wishes to speak about the modality dimension in an international context, one often takes as a starting point Austin’s expression “illocutionary force”, introduced in How to do things with Words, p. 99; further developed in Searle, Speech Acts, pp. 30, 70, etc.; ‘A Taxonomy of Illocutionary Acts’, pp. 1, etc. See further at and in note 5 below.
On the “Oslo School”, see section 3.3.3 (3)(b)(i) below, with further references.
Opsahl, ‘An Inquiry into the Meaning and Function of Legal Definitions’, p. 658 (Opsahl’s notes omitted).
Other interests than the interest in the perspective and topic of the present work produce other categorisations: via different determinations of or within the categorisation criterion (the modality dimension), or via a crossing of the modality dimension with other categorisation criteria. See e.g. Wittgenstein, Philosophische Untersuchungen, Part I, section 23; Austin, How to do things with Words, pp. 149 et seq.; Searle, Speech Acts, pp. 64 et seq.; ‘A Taxonomy of Illocutionary Acts’, pp. 12–20; Tugendhat, Vorlesungen zur Einführung in die sprachanalytische Philosophie,pp. 505 et seq. — I should remind the reader that my discussion of the concepts of proposition types, including the distinction between descriptive and normative propositions, is divided into two parts. The second part follows in section E below, which provides a discussion common to the different concepts, of how one determines whether they apply to the individual instance of language use (“operationalising” of my concepts of proposition types).
See e.g. Næss, ‘Elementa:re analytiske undersokelser’ [elementary analytical investigations], p. 6; En del elementære logiske emner [some elementary topics in logic], p. 43; Logikk og metodelære [logic and methodology], p. 66; Ofstad, Alf Ross’s begrepsbestemmelse av begrepet ‘rettsregel’ [Alf Ross’ determination of the concept of ‘legal rule’], p. 1; Aubert, ‘Logisk analyse og sosiologi i rettsvitenskapen’ [logical analysis and sociology in legal science], p. 527; Ross, Lcerebog i folkeret [textbook of international law], p. 11: “A definition is a declaration of what the speaker means by a certain word. A definition is therefore not true or false but more or less expedient…’; Whitehead/ Russell, Principia Mathematica, Vol. I, p. 11; Cohen, ‘Transcendental Nonsense and the Functional Approach’, pp. 835–36: ”A definition… is useful or useless. It is not true or false, any more than a New Year’s resolution or an insurance policy.
See e.g. Næss, En del elementcere logiske emner [some elementary topics in logic], p. 43; Logikk og metodelære [logic and methodology], p. 66; Fpllesdal/ Wall0e/ Elster, Argumentasjonsteori, sprcik og vitenskapsfilosofi [argumentation theory, language and the philosophy of science] p. 243.
See e.g. Robinson, Definition, p. 19, cf. Chapter III; Jareborg, Begrepp och brottbeskrivning [concepts and the description of criminal offences], pp. 64–65.
See e.g. Næss and F0llesdal/ Walloe/ Elster, in both cases in the same places as referred to in note 7 above.
See e.g. Robinson, Definition, p. 19, cf. Chapter IV; Andersson/ Furberg, Sprdk och pdverkan [language and influence], pp. 162–63; Jareborg, Begrepp och brottbeskrivning [concepts and the description of criminal offences], p. 64. — See further Robinson, Definition, p. 61, on other designations that have been used in literature in English: “imposition”; “institution”; “original definition”, “legislative definition”, “propositive definition”, “invitatory definition” and “imperative definition”. — Stipulated normative definitions directed at one’s own language usage (see section 3.3.1 (2) below on this type of normative definition) have also been designated “Terminologidefinition” [terminology definition] and “nominal definition”, see respectively Lassen, ‘Nogle Bem erkninger om Definitioner i Retsliteraturen’ [some remarks on definitions in legal literature], p. 60, and Patterson, Jurisprudence, p. 69.
Compare Wittgenstein, Philosophische Untersuchungen, Part I, sections 6, 22, 26, 49, 291, and the bottom text on p. 27; Hare, The Language of Morals, pp. 17–18, 188–89; Austin, How to do things with Words, p. 98; Searle, Speech Acts, pp. 22–24, 29–30; Tugendhat, Vorlesungen zur Einführung in die sprachanalytische Philosophie, p. 74.
Bentham, Of Laws in General, pp. 34–71, puts forward slightly different and crossing categorisations, which are however related to the categorisation outlined here: “subjects of a law” (pp. 34–40) and “parties which may be affected by a law” (pp. 53–71) cover inter alia the area of person here; “acts” (pp. 41–52) cover the action theme here; and “circumstances” (pp. 41–52) cover inter alia the area of situation here. From more recent literature see e.g. von Wright, Norm and Action, pp. 70 et seq.
Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation], pp. 635–51 (636–37).
On heuristic considerations in general, see sections III 2.2.6 (1)—(2) cf. 2.4.1, below.
Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation], pp. 646–51 (649–51).
Næss uses the expression “marginal references” of specifications of person and situation; see Interpretation and Preciseness, pp. 10 (on synonymity sentences), 148 (on normative definition sentences), 169–170 (on descriptive definition sentences). See further pp. 12–20 on some major categorisations of specifications of person and situation. — In my opinion Næss ascribes too little significance to this conceptualisation when he says “[n]o theoretical importance is attached to it”;
Robinson, Definition, p. 35.
Op. cit., p. 52; correspondingly on p. 39.
Næss, Interpretation and Preciseness,pp. 169–71; Ofstad, ‘The Descriptive Definition of the Concept ‘Legal Norm’ proposed by Hans Kelsen’, p. 119; ‘Om deskriptive definisjoner av begrepet rettsregel’ [on descriptive definitions of the concept of ‘legal rule’], in particular pp. 41–46.
A delimitation that is central in Næss’ works in “empirical semantics”; see section 3.3.3 (3)(b)(i) below.
The expression “definition per genus (proximum) et differentiam (specificam)” is used of propositions with the same basic structure, cf. the parentheses in the main text after the present note. However, these propositions are often about the things (“real definition”, much of what is called “vesensdefinisjon”, “Wesensdefinition”, “essential definition”, “essence definition”, or the like), not about the meanings of words (not about concepts); i.e. are not definitions in the sense of this work (cf. section 2.3 above).
The question of the sufficiency of the criteria will be problematised in section 6.2 (3) below.
Bentham, Essay on Logic, pp. 242–53. Also in The Theory of Fictions, pp. 75–104.
Bentham, Essay on Logic, pp. 245–48, also in The Theory of Fictions, pp. 84–91; A Fragment on Government, p. 106 in note 1; Of Laws in General, pp. 294–95.
Hart, ‘Definition and Theory in Jurisprudence’, particularly pp. 38 and 46; The Concept of Law, 1st ed. particularly pp. 14–15; 2nd ed. particularly pp. 15–16.
Hart, ‘The Ascription of Responsibility and Rights’, pp. 148–52; see in more detail in item (5) (c)(iii) below, concluding remarks.
Hart, ‘Definition and Theory in Jurisprudence’, particularly pp. 38–39, 45–49 cf. 41–45. — Compare section 5.5 below, on structuring via a more comprehensive linguistic context; and section IV 3.3 below, on lawyers’ use of linking-terms.
Weitz, ‘Open Concepts’, uses the term “open concept” of concepts that are not definable through necessary and sufficient concept criteria (pp. 86, 95), and discusses a number of propositions about concepts’ being to a greater or lesser extent open in this sense; inter alia propositions advanced by Popper, Stevenson, Waismann, Hart and Wittgenstein. — In German methodological discussion, including such discussion in legal theory, concepts with the openness mentioned are to a great extent discussed under the name of “Typus”; see section 5.4.2 (1)(a)(vi) below, with further references. — In the perspective here (on this perspective, see the main text after the present note) the drawing of a different boundary will show itself to be more important; see item (5)(d) below.
Wittgenstein, Philosophische Untersuchungen, particularly Part I, sections 65–88. — A contemporary writer who discussed the same thing was Austin, see item (6) below. — Several earlier writers put forward points of view related to Wittgenstein’s; e.g. Mill, who again built further on other writers; see the references in item (4)(c) below, in note 51. See also note 34 below, on some other writers’ use of the image of family resemblance.
Wittgenstein, Philosophische Untersuchungen, Part I, section 66.
op. cit., Part I, section 65.
Op. cit., Part I, section 66.
Op. cit., Part I, section 67. — Wittgenstein was not alone in this use of the analogy with resemblance in a family. In 1930 Llewellyn used a similar image to illuminate the usage of the term “common law” and the unity between the legal systems of the American states, see The Bramble Bush, p. 51: “What we have is fifteen states deciding one way, one state deciding another way and thirty states whose law is still uncertain. Yet in these circumstances, we do speak of ”common law“, and for this reason True though it is that each state sticks, in the main, to its own authorities, when it has them, yet common to all the states is a large fundamental body of institutions which show at least a brother-and-sister type of likeness…” (my italics; Llewellyn’s italics omitted). — Other writers have used the analogy with resemblance in a family, and the term “family resemblance” (or its equivalent in other languages), in the opposite way of the type of unity which Wittgenstein distinguishes from, i.e. of features in common. See e.g. Freud, Die Traumdeutung, p. 295: “[I]ch habe das Verfahren eingeschlagen, nach welchem Galton seine Familienporträts [op. cit., p. 155: Familienähnlichkeiten] erzeugt, nämlich beide Bilder aufeinanderprojiziert, wobei die gemeinsamen Züge verstärkt hervortreten, die nicht zusammenstimmenden einander auslöschen and im Bilde undeutlich werden” (my italics); Bentzon, Retskilderne [the sources of law], p. 305: “One can establish a type, e.g. of a family’s facial features, by means of ”mass photography“ of its members’ profiles, the one picture on top of the other on the same plate. Like such a photograph, a word can specify an average resemblance of the related phenomena” (my italics).
Wittgenstein, Philosophische Untersuchungen, Part I, section 67.
This concept has been formed on the basis of the purposes here. I assume that my conceptualisation is adequate in relation to much of what Wittgenstein writes about family resemblance, but I do not aim at capturing or continuing his usage in detail.
It might be reasonable to say that in the case of all words (all concepts) one must be able to specify criteria that are sufficient, because anything else seems to have to mean one of two things: either (i) that the individual instance of language use cannot be generalised to an instance-type; this means that the difference between the individual and the general disappears, and then it is reasonable to say that by definition there is no word (no concept), only sound, signs on a page, or the like; or (ii) that one can never know whether the word (the concept) has been correctly used, and then one has no use for it; compare Urmson, ‘Polymorphous Concepts’, p. 255. — For the present discussion, however, the weaker assumption in the main text will suffice: namely that in the case of most words (most concepts) one will be able to specify sufficient criteria.
These and other ways of defining I shall be discussing later in a more general perspective (sections 5–6): (i) represents specification of denotation (sections 5.2, 5.3–5.4); (ii) represents connotation specification through condition-structuring of the concept criteria (sections 5.1, 5.3–5.4, cf. 6.2); and (iii) represents connotation specification through factor-structuring of the concept criteria (same places as in the preceding parenthesis).
See the quotations in item (3)(a) above; see also references and quotation in section 3.3.3 (3)(a) below, in note 95. — My standpoint in the main text at the present note presupposes and builds on a non-metaphysical interpretation of Wittgenstein’s family resemblance analysis in relation to the question of the area of application of his analysis (item (c) below).
See e.g. the quotation in item (3)(a) above, in the text at note 34.
See e.g. the quotation in item (3)(a) above, in the text at note 35 (on the use of the word “number”).
See item (3)(a) above, at and in note 31.
Wittgenstein, Philosophische Untersuchungen, Part I, section 65, cf. section 23.
Op. cit., Part I, section 67.
Op. cit., Part I, section 77.
Loc. cit.
Op. cit., Part I, section 164.
Loc. cit.
Correspondingly Pears, Wittgenstein, pp. 107–08; Fogelin, Wittgenstein, p. 136; Baker/ Hacker, Wittgenstein: Meaning and Understanding, pp. 201 et seq. Probably correspondingly in McGinn, Wittgenstein on Meaning, p. 58 in the note. Conversely Bambrough, ‘Universals and Family Resemblances’ (passim, but see in particular pp. 191–92, cf. 194–95).
Bambrough (same places as in the preceding note) and Bloor, Wittgenstein: A Social Theory of Knowledge, pp. 33 et seq., appear to claim that all concepts have a family resemblance structure; and Lakoff/ Johnson, Metaphors We Live by, pp. 125, cf. 123 (119–24), that all concepts of experience have such a structure.
See e.g. Mill, A System of Logic, pp. 24,99–100,442–44,449: “[A] name not unfrequently passes by successive links of resemblance from one object to another, until it becomes applied to things having nothing in common with the first things to which the name was given” (p. 99; my italics); Ogden/ Richards, The Meaning of Meaning, pp. 128–31: “The slightest study of the way in which words in ordinary speech gain occasional derivative and supernumerary uses through metaphorical shifts of all degrees of subtlety, and through what can be called linguistic accidents, is enough to show that for a common element of any interest or importance to run through all the respectable uses of a word is most unlikely. Each single metaphorical shift does, of course, depend upon some common element… [b]ut… there is no reason to expect that any word at all rich in context will always be borrowed on the strength of the same similarity or overlap” (pp. 128–29; my italics). — See also item (3)(b) above on “methodical family resemblance principle”.
Bambrough, ‘Universals and Family Resemblances’, p. 204: “The realist talks of properties and qualities until, when properties and qualities have been explained in terms of other properties and other qualities, he can at last do nothing but point to the resemblances between the objects that are said to be characterised by such and such a property or quality” (my italics; Bambrough’s italics omitted).
Bloor, Wittgenstein: A Social Theory of Knowledge, pp. 33, 37, 39, 41.
I should remind the reader that I use the term “science” (1) in the broad sense of the Scandinavian “vitenskap” and the German “Wissenschaft”, i.e. to cover natural, social and human sciences, and (2) as an abbreviation for “activity one traditionally terms ”science“ in this broad sense” — that is, I neither presuppose nor lay down anything contentious through this concept of ‘science’ (cf. section I 5.1 above, in note 1).
In the sentence containing the present note, idiom is used that links speaks of’ to linguistic entities (here “concept”, “begrep”, Begriff’, “the game concept”, “rettsbegrepet”) and gives speaks of’ the meaning ‘uses’ (in contrast to ‘thematises’). In the present item (5) and in a number of instances otherwise I use such idiom since it is well established (with correspondingly little risk of misunderstandings), and since it simplifies and makes more readable the presentation of the crucial points.
As an identity criterion of words I use here the written image and that alone.
Wittgenstein speaks for his part of “der Begriff des Spiels”, see Philosophische Untersuchungen, Part I, section 68.
I should remind the reader that by “concept terminology” I mean words like “concept”, “conception”, “notion”, “idea” and their derivatives (or their equivalents in other languages) (cf. section A 2 (1) above, in note 1).
Austin, ‘The Meaning of a Word’, p. 38 including note 1.
Compare Ullmann, The Principles of Semantics, pp. 114–37; Lyons, Semantics, Vol. 2, pp. 55054; Language and Linguistics, pp. 146–48; Lakoff/ Johnson, Metaphors We Live By, pp. 106–14; Ziff, Semantic Analysis, pp. 176–81; Lewis, Studies in Words, pp. 109–10, cf. the discussions in the book in their entirety (semantic history leading up to and arousing awareness of the present semantic ramifications of words); von Wright, The Varieties of Goodness, pp. 8–18; Norm and Action, pp. 1–16; Wittgenstein, Philosophische Untersuchungen, Part I, sections 561–62: “[561:] Man möchte sagen… die Personalunion durch das gleiche Wort sei ein unwesentlicher Zufall. [562:] Aber wie kann ich entscheiden, welches ein wesentlicher und welches ein unwesentlicher, zufälliger Zug der Notation ist?”
See the respective Nordic contracts Acts, chapter one; see further e.g. Utkast til lov om avtaler og andre retshandler paa formuerettens omraade [draft of an Act concerning contracts and other juristic acts in the area of law relating to obligations and property], avgit av de norske delegerte ved det skandinaviske obligationsretsarbeide [submitted by the Norwegian delegates participating in the Scandinavian work on the law of obligations], p. 22; Almén/ Eklund, Lagen om avtal och andra râttshandlingar pâ förmögenhetsrättens omrnde [the Act concerning contracts and other juristic acts in the area of law relating to obligations and property] [Swedish], p. 10; Ussing, Aftaler [contracts] [Danish], p. 9; Wrede, Lagen om rättshandlingar pä förmögenhetsrättens omrâde [the Act concerning juristic acts in the area of law relating to obligations and property] [Finnish], pp. 15–16.
Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation], sections 5.2.3 and 5.2.4, provides a more general survey of respectively exercise norms and development norms in lawyers’ argumentation concerning the binding force of stipulated norms.
Hart, ‘The Ascription of Responsibility and Rights’, pp. 148–52. In the light of this, Hart designates the concept of ‘valid contract’ a “defeasible” concept, see op. cit., p. 148.
Op. cit., pp. 150, 152 in note 1.
Loc. cit.
Austin, ‘The Meaning of a Word’, pp. 39–42. See also Hart, The Concept of Law, 1st ed. pp. 1516, 2nd ed. loc. cit., who seems to build directly on Austin’s account.
Section 2 of the Public Administration Act (10 February 1967).
The same goes for the custom-based definitions, so that the word “normative” is by definition unnecessary in the formulations “stipulated normative definitions” and “custom-based normative definitions”. For the sake of clarity, I nevertheless use the formulations mentioned, partly in the headings of the present section 3.3.1 and the following section 3.3.2, and partly in a number of instances in the text.
On an aspect of qualification modality, see section 3.3.2 (1) below.
Hospers, An Introduction to Philosohical Analysis, pp. 32–33, lets the dimensions ‘modality type’ and ‘person connection’ coincide, so that by definition normative definitions are addressed to oneself, while by definition descriptive definitions describe other people’s use of language. — This conceptualisation in Hospers is not very expedient when the aim is the mapping of actually occurring language and argumentation. As is apparent from the main text in what follows, it is both conceivable and practical that one describes one’s own use of language or normatively regulates other people’s.
See Arnholm, Alminnelig avtalerett [general law of contract], pp. 268–72; Privatrett II: Avtaler [private law II: contracts], pp. 284–87; Larebok i avtalerett [textbook of contract law], pp. 227–28.
Austin, How to do Things with Words, p. 136.
The concept of ‘competence’ is defined in more detail in Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation]. Here the criteria mentioned in the text at the present note will suffice.
See in general Eckhoff/ Smith, Forvaltningsrett [administrative law], pp. 642–44.
Huser, Avtaletolking [interpretation of contracts], pp. 555–57.
Aspects of this boundary are illuminated inter alia in Rommetveit, Sprdk, tanke og kommunikasjon [language, thought and communication], pp. 120–53; Lemmon, ‘Sentences, Statements and Propositions’, at and in notes 3 and 6, cf. pp. 105–07; Cavell, ‘Must We Mean What We Say?’, pp. 8 et seq., 31; Searle, ‘Indirect Speech Acts’, passim. — Concerning this boundary in the case of texts of statutes, see e.g. section 3.3.6 (1) below, in the indent; Eckhoff, Rettskildelære [doctrine of the sources of law], pp. 40–41; compare also op. cit. 1st ed. pp. 119–23. — In the case of contracts, wills and other dispositive acts in private law, the indeterminacy of this boundary is reflected in indeterminacy of several other distinctions, e.g. (i) indeterminacy of a methodological distinction between “tolking” and “utfylling” [interpretation and implication]; as far as contracts are concerned, compare Knoph, ‘Nogen ord om dommerens stilling til kutymene’ [some words on the position and attitude of the judge in relation to usages in trade], pp. 306–08; Stang, Innledning til formueretten [introduction to the law of obligations and property], pp. 447–49; Arnholm, Lcerebok i avtalerett [textbook of contract law], pp. 32–33; Huser, Avtaletolking [interpretation of contracts], pp. 121–34; Hov, Avtalerett [law of contract], pp. 71–72; Selvig, Kontraktsretten [law of contract], pp. 576–77; Krüger, Norsk kontraktsrett [Norwegian law of contract], p. 506; (ii) indeterminacy of a distinction between explicit and tacit dispositive acts; as far as contracts are concerned, compare Karlgren, ‘Nâgra spörsmâl i anslutning till 8 § Avtalslagen’ [some questions in connection with section 8 of the Contracts Act] [Swedish], pp. 17–21.
Eckhoff/ Sundby use the words “meningskumulasjon” [meaning cumulation]/ “Bedeutungskumulation” of the fact that the same formulation expresses two or more independent propositions, see Rettssystemer [legal systems], p. 139; Rechtssysteme, p. 117. In the same works, respectively pp. 139–41 and 117–19, they point to some common forms of meaning cumulation in the case of formulations concerning legal questions (definitions are not mentioned).
Weber, ’Über einige Kategorien der verstehenden Soziologie’, pp. 439–40; Aubert, Rettens sosiale funksjon [the social function of law], pp. 15–16; ‘Om relationerna mellan juridiska och sociologiska begrepp’ [on the relations between legal and social concepts], passim (on inter alia the concepts of ‘felony’, ‘right of ownership’, ‘contract’, ‘causality’ and ‘sanction’).
On the qualification modality, see T. Stromberg, Inledning till den allmänna rättsläran [introduction to legal theory], pp. 80–86, 92–97; Rättsordningens byggstenar [the building bricks of the legal system], pp. 42–49, 57–75; ‘Hur gick det for kvalifikationsnormerna?’ [what happened to the qualification norms?]; Sundby, Om normer [on norms], pp. 34–37, 77–117; Eckhoff/ Sundby, Rettssystemer [legal systems], 1st ed. pp. 84–93; 2nd ed. pp. 50, 53–54, 100–07; Rechtssysteme, pp. 46, 49–50, 8589; Peczenik, Rättsnormer [legal norms], pp. 26–32. — Even though custom-based definitions have a qualification modality, they are not automatically qualification norms in the terminology of the said writers; see Eng, U/enighetsanalyse — med særlig sikte pd jus og allmenn rettsteori [analysis of dis/ agreement — with particular reference to law and legal theory], pp. 117–19.
Compare Sundby, Om normer [on norms], pp. 105–07 (“a completely general concept of ‘category membership’ ”; “duty norms provide criteria for what is to count as mandatory etc….. a special instance under a broader concept of ‘qualification norm’ ”); p. 80 (“the competence norms… serve as… a model for the other qualification norms”). Correspondingly Eckhoff/ Sundby, Rettssystemer [legal systems], 1st ed. pp. 91–92; 2nd ed. pp. 100–01 (“all norms could thus be characterised as qualification norms”); Peczenik, Vad är rätt? [what is law?], pp. 440, 684. See also Weber, ‘R. Stammlers “Überwindung” der materialistischen Geschichtsauffassung’, pp. 340 (“solche Vorgänge, welche, vom Gesichtspunkt einer… ”Skatregel“… aus gesehen, als relevant gelten, charakterisieren uns einen Komplex von Hantierungen als ”Skatspiel“” (Weber’s italics omitted); “Dienst des Normbegriffs bei der Klassifikation and Objekt-Abgrenzung”), 342, 351; Kelsen, Reine Rechtslehre, 1st ed. pp. 4–5(7); 2nd ed. pp. 3–4 (“die Norm als Deutungsschema”); Goffman, Stigma,p. 15 (“By definition… we believe the person with a stigma is not quite human”) taken together with the work in its entirety (this shows how many norms also touch on and run together in a socially mediated definition of ‘normal person’).
See sections 3.3.1 above and 3.3.6 below, on these types of modality in the case of stipulated definitions. — In his (otherwise inspiring and informative) discussion of qualification norms, Sundby does not in my opinion distinguish sufficiently clearly between the question of the concept of ‘qualification norm’ and the question of whether the aspects the concept brings out are of interest (see Om normer [on norms], Chapter 4, e.g. pp. 99–114), with the consequence that both questions seem more obscure than necessary. As I understand it, the essentials are that the concept of ‘qualification norm’ has a very wide area of application (see the preceding note); that the concept in many instances points to an aspect that is of interest; but that the latter area is considerably smaller than the first (see e.g. the main text between the preceding note and the present one).
Whorf, Language,Thought, and Reality, p. 216; Lyons, Language and Linguistics, pp. 306, 311. The word “interest” I use in a broad sense, compare Geertz, ‘Common Sense as a Cultural System’, p. 88: “In an environment populated with conifers, or snakes, or leaf-eating bats it is practical to know a good deal about conifers, snakes, or leaf-eating bats, whether or not what one knows is in any strict sense materially useful, because it is of such knowledge that ”practicalness“ is there composed.”
Mead, Mind, Self and Society, pp. 77–80, 129–33; Whorf, Language, Thought, and Reality, in particular pp. 207–20,233–45,246–70; Lyons, Language and Linguistics, pp. 303–24.
Sundby, Om normer [on norms], Part 2.
Arnholm, ‘Omkring rettshandelsteorien’ [concerning the theory of juristic acts], in particular pp. 410–12.
Jareborg, ‘Regler och riktlinjer — en replik’ [rules and guidelines — a rejoinder], p. 440; cf. ‘Regler och riktlinjer’ [rules and guidelines], pp. 388–89 including note 4,396–97,407–08,409.
Eng, ‘Sondringen mellom regler og retningslinjer’ [the distinction between rules and guidelines], pp. 476, cf. 482.
Eckhoff, Tvilsrisikoen [the bearing of the risk of doubt], in particular pp. 14–21.
Concerning the general use of language, see e.g. Bokm$lsordboka [dictionary of the Bokmâl form of Norwegian] and Nynorskordboka [dictionary of the Nynorsk form of Norwegian] produced by the Department of Norwegian Lexicography (now the Section for Lexicography) at the University of Oslo and the Norwegian Language Council. - Concerning particular areas of the use of language, see e.g. dictionaries from the Norwegian Council for Technical Terminology, established in 1938 for the purpose of “working for clarity. unambiguity and uniformity in Norwegian technical terminology”; see Lydersen/ Dahlo, ‘Refleksjoner over arbeid med teknisk terminologi’ [reflections on work on technical terminology], p. 97.
For some general information on duty norms from the Government, the ministries and the Norwegian Language Council, see St.meld. No. 100 1980–81 [report to the Storting], pp. 4–5. As an example, see the same report, pp. 6–7 with appendices, cf. S.tid. 1980–81 [reports of parliamentary proceedings], pp. 3772–91, with the consent of the Storting [national assembly] to the proposed duty norms concerning use of language in school textbooks and in the Civil Service.
On semi-stipulation through travaux préparatoires and judgments, see Eckhoff/ Sundby, Rettssystemer [legal systems], 1st ed. pp. 221–23; 2nd ed. pp. 173–76; Rechtssysteme, pp. 146–48. See also Sundby, Om normer [on norms], p. 351.
Olivecrona, Law as Fact, 1st ed. p. 77.
Op. cit., pp. 9–17(12–15).
Wittgenstein, Philosophische Untersuchungen, e.g. Part I, sections 109, 122–33. — “Die Philosophie darf den tatsächlichen Gebrauch der Sprache in keiner Weise antasten, sie kan ihn am Ende also nur beschreiben. Denn sie kann ihn auch nicht begründen. Sie läßt alles, wie es ist” (section 124).
Austin, ‘A Plea for Excuses’, pp. 129–34. — “[W]e are to proceed from ‘ordinary language’, that is, by examining what we should say when, and so why and what we should mean by it” (p. 129; Austin’s italics omitted). “[O]rdinary language is not the last word: in principle it can everywhere be supplemented and improved upon and superseded. Only remember, it is the first word” (p. 133; Austin’s italics omitted). — Correspondingly in Sense and Sensibilia, p. 63. See also How to do Things with Words, p. 122.
Ryle, ‘Ordinary Language’, passim. — “Philosophers often have to try to describe the stock… manner… of employing an expression.… [This] does not require and is not usually helped by information about the prevalence or unprevalence of this way-of employing it. For the philosopher, like other folk, has long since learned how to employ or handle it, and what he is trying to describe is what he himself has learned” (p. 310). — Correspondingly in ‘Philosophical Arguments’, p. 210.
Searle, Speech Acts, pp. 12–15. — By reflecting on linguistic elements I can offer linguistic characterizations which do not record particular utterances but have a general character, deriving from the fact that the elements are governed by rules. The ‘justification’ I have for my linguistic intuitions as expressed in my linguistic characterizations is simply that I am a native speaker of a certain dialect of English and consequently have mastered the rules of that dialect… (p. 13).
Hare, Moral Thinking, pp. 8–10, 115–16. — “How… do we establish that any word has any logical property?… [W]e can tell when people are contradicting themselves because we know the language they are speaking.… [T]here are linguistic ‘intuitions’, and the disciplines of logic and linguistics rely on them” (pp. 8–9; Hare’s italics omitted).
Næss, Interpretation and Preciseness, Foreword and Introduction. — “Very roughly, one may distinguish a deductive, an intuitionistic and an empirical component in the writings of analytical philosophers.… If empirical studies are neglected, we shall see much intelligent debate along intuitionistic lines, but less of that process which many of us find so inspiring in the history of philosophy and science: the development of new branches of reliable knowledge as a result of combined philosophical and scientific efforts” (p. X).
Gullvâg, ‘Arne Næss og Oslo-skolen i norsk filosofi’ [Arne Næss and the Oslo School in Norwegian Philosophy], pp. 110–13, 115–19. Næss’ main work in empirical semantics is Interpretation and Preciseness (1953). In the foreword he provides a survey of central works from the Oslo School.
See e.g. Jareborg, Begrepp och brottbeskrivning [concepts and the description of criminal offences], p. 21.
Næss, “Truth” as Conceived by Those who are not Professional Philosophers, p. 174: “Partial solutions, working hypotheses or discussions of ”minor“ problems… are worthy: they can be formulated so as to be controllable and there can be hope to verify them by means of prosaic methods. The necessary foundation for progress is thus provided.”
Næss, An Empirical Study of the Expressions “True”, “Perfectly Certain” and “Extremely Probable”, p. 37.
On this intersubjective character, see section 3.3.2 (3) above, with further references; second paragraph of the present item (3), with further references; Cavell, ‘Must We Mean What We Say?’, pp. 4–8, 12 et seq., 32 et seq.
Carnap, ‘Intellectual Biography’, pp. 28 et seq.; Feigl, ‘The Wiener Kreis in America’, pp. 639, 648–49, 658; Ayer, ‘Logical Positivism, Editor’s Introduction’, pp. 7–8. — I shall later, as a step in my treatment of criteria that are used in the setting up of and choice between normative definitions, give an account of the logical positivists’ emphasis on operationalisability as a criterion, including their use of persuasive definitions of words like “meaning” and “science” to promote the criterion (sections 7.3.2 (3) cf. III 2.2.2 (3), below). — Further, as a step in the establishment of the concept of an actually occurring pattern of analysis, I shall give an account of the mode of definition Carnap calls “explication”, and which he formed with a view to developed conceptual systems in natural science and logic/ mathematics (section V 3.3.1 (2)(c) below).
Davidson, ‘A Nice Derangement of Epitaphs’, p. 446: “[T]here is no such thing as a language… We must give up the idea of a clearly defined shared structure which language-users acquire and then apply to cases”; quoted, with concurrence, by Rorty, ‘Two Retrospective Essays’, p. 373.
See section G below, where I situate the present work in relation to Quine’s critique.
Differently in Andersson/ Furberg, Spräk och pdverkan [language and influencing], pp. 163–65; Peczenik, Vad är rätt? [what is law?], pp. 150 (bottom)-151 (top).
On the concepts of ‘connotation specification’ and ‘denotation specification’, see section A 4 above. The definitions given there should be adequate here. The main discussion of the two modes of definition and their interplay will be presented in section 5 below.
E.g. section 2 of the Public Administration Act (10 February 1967).
Section 4, second paragraph, of the Sale of Goods Act (Act No. 27 of 13 May 1988). — Here and in other discussions of this example in what follows, I speak of “consumer purchase”, since this is the literal translation of the term in the Norwegian statute and since the perspective of the present work is primarily linguistic and philosophical, not legal. In a great deal of recent Anglo-American law the term “consumer sale” would be more likely.
NOU 1987: 14 [Norwegian official reports], Eiendomsmegling [estate agency], p. 83, cf. Ot.prp. No. 59 1988–89 [proposal from the Government], p. 48. — Other examples of the same definition technique are to be found inter alia in section 8 of the Copyright Act (Act No. 2 of 12 May 1961) (“a literary, scientific or artistic work is issued when…, ”a literary, scientific or artistic work is published when…); sections 13–16 of the Sale of Goods Act (Act No. 27 of 13 May 1988) (the bearing of the risk passes/ does not pass to the purchaser when…).
Andena:s, Norsk straffeprosess [Norwegian criminal procedure], Vol. 1, pp. 69, 83, 85.
Arnholm, Arveretten [law of succession], p. 107; Augdahl/ Hambro, Arveloven med kommen-tarer [the Inheritance Act with commentary], p. 172.
In the case of all constitutions and statutes, and in the case of most regulations, a number of people are involved in the drafting of the text and its passing into law.
On in/validity norms, see Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation], pp. 653–64.
Prohibition may, however, result from supplementary regulation in the duty dimension, see Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation], pp. 658, 664.
Sundby, Om normer [on norms], sees statutory definitions as propositions with qualification modality (pp. 115 and 344). Concerning this modality I refer to section 3.3.2 (1) above. As mentioned there, I agree that qualification modality is one aspect of stipulated definitions, but consider that the recommendation, promise, command/ prohibition and end-means aspects are of greater interest in the case of such definitions.
See e.g. section 2 of the Public Administration Act (10 February 1967).
See e.g. section 4, second paragraph, of the Sale of Goods Act (Act No. 27 of 13 May 1988).
Eckhoff/ Smith, Forvaltningsrett [administrative law], p. 471.
Eckhoff, Rettskildelære [doctrine of the sources of law], 1st ed. p. 86.
Sometimes a need for relativising is stated explicitly; e.g. in Frihagen, Forvaltningsloven — kommentarutgave [the Public Administration Act — a commentary], Vol. 1, p. 64, in relation to the definition of “part” [party] in section 2 (e) of the Public Administration Act (10 February 1967). More often such a need shows itself by presupposition; e.g. in Eckhoffs use of the definition of “enkeltvedtak” [individual decision] in section 2(b) cf. (a) of the Public Administration Act, when on the one hand he claims that contracts concerning the exercise of public authority are individual decisions, see Eckhoff, Forvaltningsrett [administrative law], 4th ed. pp. 483–84, and on the other hand claims that the reversal rules in section 35 of the Public Administration Act, which undoubtedly apply to individual decisions, do not apply to such contracts, see op. cit. same ed. p. 551.
See e.g. section 3.2.2 above, on the presupposed concept of ‘concept’.
The concept of ‘denotation’ may be laid down so that it covers those phenomena that are delimited by the criteria at a particular point in time (Næss, Interpretation and Preciseness, pp. 73–74); or so that it covers those phenomena which in the past, present and future were, are and will be delimited by the criteria (Hospers, An Introduction to Philosophical Analysis, p. 40). — Where this difference is of significance in the present work, the context should provide information about what is intended. I do not consider it necessary to draw a general definitional boundary in this dimension.
Wittgenstein, Philosophische Untersuchungen, Part I, section 244.
Eng, ‘ “Hva er en viljeserkla:ring?”’ [“what is a declaration of intent?” 1, pp. 31–32. — In the case of propositions of the form “I wish…”, “I intend…”, or the like, the substituting function is total, intersubjectively cognisable, and linked to individual words (“wish”). In other instances it is partial, concealed, or linked to longer formulations. A metaphor, for example, will, in addition to saying something relevant in the situation, often replace the individual’s early/ earlier pattern-creating experiences and emotion constellations; compare Sharpe, ‘Psycho-Physical Problems Revealed in Language: an Examination of Metaphor’, pp. 159 et seq.
Austin, Sense and Sensibilia, p. 70; correspondingly in ‘Other Minds’, pp. 55–56.
Austin, ‘A Plea for Excuses’, p. 128.
Smith, The Theory of Moral Sentiments, p. 82.
Schopenhauer, ‘Zur Rechtslehre und Politik’, p. 262 (§ 121).
Hart, ‘The Ascription of Responsibility and Rights’, pp. 152–53.
Andenæs, Alminnelig strafferett [general criminal law], pp. 264–65.
Summers, ’ “Good Faith” in General Contract Law and the Sales Provisions of the Uniform Commercial Code’, in particular pp. 196, cf. 200–07; ‘The General Duty of Good Faith — its Recognition and Conceptualization’, in particular pp. 816–21.
Summers, ‘The General Duty of Good Faith — its Recognition and Conceptualization’, p. 819.
Op. cit., p. 820.
Concerning the excluding function of words, see also the analysis of lawyers’ use of the term “valid [binding, effective, or the like] contract” in section 3.2.2 (5)(c)(iii) above.
For example, one treats concepts and definitions beside each other, pretty much without mediation between the two categories; as examples, see Næss, Logikk og metodelære [logic and methodology], Chapter 5 (“Presisering og definisjon” [clarification and definition]) compared with Chapter 6 (‘Begrepslære’ [doctrine of concepts]); Hospers, An Introduction to Philosophical Analysis, Chapter 1 (“Meaning and Definition”) compared with Chapter 2 (“Knowledge”, including discussion of “Concepts”).
Frege, The Foundations of Arithmetic, p. VII.
Gödel, ‘Russell’s Mathematical Logic’, p. 137.
By “rule terminology” I mean words like “Yule”, “norm”, “law” and their derivatives (or their equivalents in other languages).
I should remind the reader that by “concept terminology” I mean words like “concept”, “conception”, “notion”, “idea” and their derivatives (or their equivalents in other languages) (cf. section A 2 (1) above, in note 1).
Kant, Kritik der reinen Vernuft, A 126. — Kant’s sharp distinction between the sense element of experience (Rezeptivität der Sinnlichkeit) and the concept element of experience (Verstand, Begriffe, Regeln, Gesetze) is an important difference in relation to Hume, A Treatise of Human Nature, who saw concepts (“ideas”) as a weaker form of sense impression (“faint images of [impressions]”), see p. 1.
See Eng, U/enighetsanalyse — med særlig sikte pâ jus og allmenn rettsteori [analysis of dis/agreement — with particular reference to law and legal theory], pp. 117–19.
Compare Kenny, Will, Freedom and Power, p. 51, see also pp. 5, 19–21; Chomsky, Rules and Representations, pp. 55, 57; Searle, The Construction of Social Reality, pp. 61–62.
I should remind the reader (cf. section 2.2 above, introductory remarks) that I use “determinacy” as a common term for the dimensions of unambiguity (in contrast to ambiguity and polysemy); of completeness (in contrast to incompleteness); of preciseness (in contrast to vagueness); and of condition structure of concept criteria, which often means unity in the form of features in common (in contrast to factor structure of concept criteria, for example unity in the form of family resemblance).
Compare Zapffe, Indfpring i litterær Dramaturgi [introduction to literary dramaturgy], p. 256: “[I]t will involve hopeless confusion if one also includes quality requirements in the determination of genre (”this is not a tragedy, this is balderdash“)”; Goodman, ‘When Is Art?’, p. 66: “The literature of aesthetics is littered with desperate attempts to answer the question ”What is art?“… [a] question… often hopelessly confused with the question ”What is good art?“ ”; Myrdal, The Political Element in the Development of Economic Theory, p. 192: “[E]conomic reasoning is often obscured by the fact that normative principles are not introduced explicitly, but in the shape of general ‘concepts’…. The perpetual game of hide-and-seek in economics consists in concealing the norm in the concept.” — Compare section 7 below, on persuasive definitions.
Hart, The Concept of Law, 1st ed. pp. 203–07; 2nd ed. pp. 207–12.
op. cit., 1st ed. p. 16; 2nd ed. loc. cit. See in more detail in section 2.2 (ii) above.
Wittgenstein, Philosophische Untersuchungen, Part 1, section 71 (Wittgenstein’s italics).
op. cit., Part I, section 88. — See also Part I, section 99.
op. cit., Part I, e.g. sections 29, 84–87, 141.
op. cit., Part I, section 87.
See the next note.
When the presentation of my definition theory has been completed, I shall give some critically reflexive characterisations that are more nuanced, by applying the theory to the definitions in the theory (section 9 below). — At the present stage of the presentation there is not an adequate basis for the same richness of nuances, nor is such richness of nuances necessary; the two critically reflexive sentences that introduce the present item (a) are sufficient for the purpose here.
Frege, ‘On Sense and Meaning’, p. 60; Wittgenstein, Zettel, section 96.
Wittgenstein, Philosophische Untersuchungen, Part I, section 108. — See also item (1)-,(2)(b) above.
Op. cit., Part I, section 201 (Wittgenstein’s italics omitted).
Op. cit., Part I, section 242. — Here one can read “Definitionen” as custom-based normative definitions; and “Urteilen” as characterisations, in which the custom-based normative definitions are presupposed and applied.
Op. cit., Part I, section 241 (Wittgenstein’s italics omitted).
Hohfeld, Fundamental Legal Conceptions, in particular pp. 36 et seq., cf. p. 65.
Ogden/ Richards, The Meaning of Meaning, p. 123; Mead, Mind, Self and Society, p. 97; Robinson, Definition, pp. 66, 72–73; Hospers, An Introduction to Philosophical Analysis, pp. 5–7; Rommetveit, Sprâk, tanke og kommunikasjon [language, thought and communication], pp. 51–52; Lyons, Language and Linguistics, pp. 19(-23), 55. — See also section A 6 (3) above, on the corresponding relationship between proposition and language.
Some writers call the sign respectively “symbol” and “sign/al”, according to whether it is part of a conventional or natural sign relation; see e.g. Parkinson, ‘Introduction’, p. 1; Andersson/ Furberg, Sprâk och pâverkan [language and persuasion], p. 100. It is more usual to use “sign” as the common term (“the theory of signs”). However, the use of “symbol” and “sign/al” varies in several dimensions (also) among influential writers; see e.g. Langer, Philosophy in a New Key, pp. 29 et seq., 57 et seq.; Alston, Philosophy of Language, pp. 50–61; Lyons, Semantics, Vol. 1, pp. 95–109. — In the present work it is not necessary to use these terms.
On how stipulated definitions are used to change the appeal of words to emotions, see sections 7.3.2 (2)(b) cf. 7.3.1 (4), below.
Compare Rommetveit, Sprâk, tanke og kommunikasjon [language, thought and communication], pp. 39–40.
I use “definition of words” instead of the complete formulation “definition of the usage/ meaning/ [or the like]… of a word”. I do so, partly for the sake of brevity, and partly because the abbreviated form isolates what in this context is the essential: that the definition formulation (also) speaks of words, not (only) concepts.
See e.g. Mill, A System of Logic, p. 86 (“[t]he simplest and most correct notion of a Definition is, a proposition declaratory of the meaning of a word”); Whitehead/ Russell, Principia Mathematica, Vol. I, p. 11 (“A definition is a declaration that a certain newly-introduced symbol or combination of symbols is to mean the same as a certain other combination of symbols”); Ogden/ Richards, The Meaning of Meaning, p. 118 (“the naming relation is involved in… every definition”); Carnap, Der logische Aufbau der Welt, pp. 70, 159 (“eine Definition … gibt an, daß ein bestimmtes Zeichen … in allen Aussagen ersetzt werden darf durch ein anderes … Zeichen”); Quine, ‘Truth by Convention’, p. 78 (“[a] definition, strictly, is a convention of notational abbreviation”); ‘Two Dogmas of Empiricism’, pp. 24–27; ‘Carnap and Logical Truth’, pp. 394–95 (“[1]egislative definition introduces a notation … [d]iscursive definition … sets forth a preexisting relation … between notations”); Robinson, Definition, p. 191 (“I propose … that by ‘definition’ we always mean a process … either of equating two symbols or of reporting or proposing a meaning for a symbol”); Noss, Interpretation and Preciseness, p. 147 (“normative definition [shall mean the same as] sentence which announces that a certain expression … shall be interpreted or used synonymously with a certain other expression”); p. 169 (“descriptive definition [shall mean the same as] sentence [which] states that a certain expression … is used synonymously with a certain other expression”); Weinberger, Rechtslogik, p. 358 (“[u]nter einer Definition werden wir — annähernd gesagt — die Bestimmung der Bedeutung oder/ und Anwendungsweise eines sprachlichen Ausdrucks mittels anderer sprachlicher Ausdrücke verstehen”).
Arnholm, ‘Omkring rettshandelsteorien’ [concerning the theory of juristic acts], p. 413.
Compare Eng, ‘Begrepene ‘kompeanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation], pp. 628 (paragraph in small print) cf. 627 (bottom).
See, however, item (f) below, on statutory definitions.
I should remind the reader that by “concept terminology” I mean words like “concept”, “conception”, “notion”, “idea” and their derivatives (or their equivalents in other languages) (cf. section A 2 (1) above, in note 1).
Eckhoff, Tvilsrisikoen [the bearing of the risk of doubt], especially pp. 9–21.
Arnholm, ‘Omkring rettshandelsteorien’ [concerning the theory of juristic acts].
Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation].
See e.g. section 3 of the Norwegian Rail Transport Act (Act No. 74 of 15 June 1984).
Compare Hohfeld, Fundamental Legal Conceptions, p. 30: “Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things; so that their use in connection with legal relations is, strictly speaking, figurative or fictional” (Hohfeld’s footnote omitted); Stang, Innledning til formueretten [introduction to the law of obligations and property], p. 8.
Gaarder, InnfOring i internasjonal privatrett [introduction to international private law], p. 22; Philip, Dansk international privat-og processret [Danish international private and procedural law], pp. 3–4; Eckhoff, Rettskildelcere [doctrine of the sources of law], 1st-3rd eds. respectively pp. 257, 258, 254.
Gaarder and Eckhoff, same places as referred to in the preceding note. — Philip avoids much of this misleadingness by separating out procedural decisions and rules under the name of “international procedural law”; see the same work as referred to in the preceding note, pp. 7–8.
Same places as referred to in note 55 above.
Eckhoff, Tvilsrisikoen [the bearing of the risk of doubt], pp. 14–21.
Arnholm, ‘Omkring rettshandelsteorien’ [concerning the theory of juristic acts], pp. 371–72.
Op. cit., pp. 376–89.
Op. cit., p. 412. — See also section 4.3.3 below, where analyses of the juristic act serve to illustrate alternation between old and new in the structuring function and naming function of definitions.
Johansen, ‘Spillteori som grunnlag for samfunnsanalyse’ [game theory as a basis for analysis of society]; Elster, Forklaring og dialektikk [explanation and dialectics], in particular pp. 74–86, cf. 18190; F0llesdal/ Walloe/ Elster, Argumentasjonsteori, sprâk og vitenskapsfilosofi [argumentation theory, language and the philosophy of science], pp. 296–301.
For the sake of brevity I use in a number of places “traditionall innovative exercise of the definition functions” as a common term for the two distinction dimensions ‘normative-traditional exercise—normative-innovative exercise’ and ‘structuring function—naming function’.
Nwss’ major work on this is Interpretation and Preciseness (1953). But a number of his other works are also concerned with these problems; see e.g. “Truth” as Conceived by Those who are not Professional Philosophers (1938). — See also section 3.3.3 (3)(b)(i) above).
Arnholm, ‘Fra avtalerettens arbeidsomrâder’ [from the research areas of the law of contract], p. 322; ‘Omkring rettshandelsteorien’ [concerning the theory of juristic acts], pp. 373–74.
Eckhoff, Tvilsrisikoen [the bearing of the risk of doubt], pp. 14–21.
Sundby, Om normer [on norms], pp. 190 et seq.
Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation]. The references in parentheses in the rest of the paragraph are to this article.
Hagerup, Retsencyclopcedi [encyclopaedia of law], pp. 56, 59.
op. cit., p. 59. See also same writer, ‘Anmeldelse av Fredrik Stang, Innledning til formueretten’ [review of Fredrik Stang, introduction to the law of obligations and property], pp. 189–90.
Stang, Innledning til formueretten [introduction to the law of obligations and property], p. 210.
Arnholm, ‘Omkring rettshandelsteorien’ [concerning the theory of juristic acts], p. 412.
Op. cit., p. 410.
Op. cit., p. 411.
Hoy, Avtalerett [law of contract], Chapter 2 (“Det dispositive utsagn” [the dispositive proposition]), cf. the following chapters in the same work.
Op. cit., p. 26 (Hov’s italics omitted).
Aarbakke, ‘Aksjetegning. Ugyldighet, mislighold og ansvar’ [subscription of shares. Invalidity, breach of contract and liability], passim.
On questions of identity more generally, see Ekelöf, Processuella grundbegrepp och allmänna processprinciper [fundamental procedural concepts and general procedural principles], pp. 39–45. See also section 3.2.2 (5) above, introductory remarks.
See section 2.2 above, at and in note 7, on different dimensions of indeterminacy. The exception is factor-structuring of concept criteria, including family resemblance, see the reference in the said note 7.
True enough, one operates with notions of graduated differences between words too. The criteria that motivate here are, however, partly vague and partly infiltrated with criteria concerning difference in meaning.
The use of the word “concept” of words is common in everyday speech and occurs quite often in academic literature as well; see e.g. Knoph, Hensiktens betydning for grensen mellem rett og urett [the significance of intent for the boundary between the lawful and the unlawful], p. 42 (“The concept of unlawfulness … in the mouth of the lawyer”); Hov, Avtalerett [law of contract], p. 24 (“[T]he concept of juristic act … is an expression that was much used earlier”); Sharpe, ‘A Note on “the Magic of Names”’, p. 107 (“Good” and “Bad” are the magical words of propaganda by which mass psychology is manipulated. The repetition of scientific concepts such as “Oedipus Complex” could never acquire the power of an incantation“); Larenz, Methodenlehre der Rechtswissenschaft, p. 370 (”Der Begriff der “Gesetzlücke” bezeichnet …“); Stolleis, ‘Gemeinschaft and Volksgemeinschaft’, passim, e.g. p. 110 (”die Versuche, den Begriff “Gemeinschaft” als neuen Terminus in die Rechtssprache einzuführen).
Rickert, Zur Lehre von der Definition, in particular pp. 20 et seq., 46–47, 62.
Op. cit., in particular pp. 17–20, 46–47, 62.
Op. cit., the same places as referred to in the two preceding notes.
Op. cit., pp. IX—X.
op. cit., pp. 15 et seq., compare p. V.
op. cit., pp. 21 (“die eigentliche Definition”); 22 (“ihr logisches Wesen”); 62 (“das logisch Wesentliche”). — On persuasive definitions, see section 7.3 below.
Robinson, Definition, p. 109.
See section 2.2 above, at and in note 7, on different dimensions of indeterminacy of words or concepts. The exception is factor-structuring of concept criteria, including family resemblance, see the reference in the said note 7.
Robinson, Definition, pp. 114–16.
For causes, see sections 3.3.3 (2) and 4.2 (5)(c), above; and section 5.4.3 (1) below, concluding remarks (at and in note 107).
In the conceptual framework of this work, criteria are by definition general (sections 5.1 (1) cf. A 4, above). The fact that in the sentence containing the present note and in a number of instances in what follows I nevertheless use the formulation “general criteria”, is because I want to emphasise, and remind the reader of, the contrast with denotation specification in the form of specification of individual things.
In the case of statutory definitions, complete enumeration of types is a practical alternative to connotation specification, see section 5.4.2 (2)(a) below.
F0llesdal/ Wal10e/ Elster, Argumentasjonsteori, sprâk og vitenskapsfilosofi [argumentation theory, language and the philosophy of science], pp. 221, 242.
On actual subjective meaning and hypothetical subjective meaning, see section E 2.2.3 below.
NOU 1993: 18 [Norwegian official reports], Lovgivning om menneskerettigheter [legislation on human rights], pp. 158, cf. 29–33. — The defining takes place more specifically in relation to the first paragraph of the Article, which reads: “It is incumbent upon the state authorities to respect and safeguard human rights.”
Wittgenstein, Philosophische Untersuchungen, particularly Part I, sections 27–36.
Op. cit., Part I, section 30.
op. cit., Part I, section 29.
Wittgenstein, Tractatus Logico-Philosophicus, London 1922 (original German edition 1921).
Stenius, Wittgenstein’s Tractatus, pp. 61–65, 118–26; Baker/ Hacker, Wittgenstein: Meaning and Understanding, pp. 1–27 (25–27); Ayer, Wittgenstein, pp. 17 et seq.; Pears, The False Prison, Vol. 1, pp. 63 et seq.
Neurath/ Hahn/ Carnap, Wissenschaftliche Weltauffassung: der Wiener Kreis, p. 309; Carnap, ‘Intellectual Autobiography’, p. 57.
In the light of progress in formal logic, attempts were made to carry out the relevant logical analysis as formal-logical analysis, see Carnap, Der logische Aufbau der Welt (1928); ‘Intellectual Autobiography’, pp. 16–17. In this perspective definition theory went a long way to being part of formal-logical theory, see Dubislav, Die Definition (1931), p. 147 (“[D]ie Methoden d[er] Begriffsoder besser Zeichenreduktionen [sind] keine anderen als diejenigen, welche wir bei der Behandlung der Definitionen … kennengelernt haben”), cf. the work in its entirety. — As a programme, the coupling of the model of language outlined in the main text here and the progress in formal logic had been formulated earlier, see Russell, Our Knowledge of the External World (1914), pp. 11, 72, 109, 119, 128–29; ‘The Relation of Sense-data to Physics’ (1914), pp. 149–52 (p. 149: “The supreme maxim in scientific philosophising is this: Wherever possible, logical constructions are to be substituted for inferred entities”; p. 151: “A complete application of [this] method … would exhibit matter wholly in terms of sense-data, and even, we may add, of the sense-data of a single person, since the sense-data of others cannot be known without some element of inference”); cf. both works in their entirety. Russell’s formal-logical works and his programme for “scientific philosophising” were also (beside inter alia Wittgenstein’s Tractatus, cf. the main text here) an important source of influence, see Carnap, Der logische Aufbau der Welt, pp. 1, 3–4; Vorwort zur 2. Aufl. (1961, the reference here is to 3. Aufl. 1966), p. XI; ‘Intellectual Autobiography’, pp. 11, 12–14, 16.
Wittgenstein, Tractatus Logico-Philosophicus, section 5.557; see also the works and places referred to in note 14 above.
Carnap, Der logische Aufbau der Welt, pp. 83 et seq.; ‘Testability and Meaning’, pp. 9–14; ‘Intellectual Autobiography’, pp. 16–18, 23, 50–53; Ayer, ‘Logical Positivism, Editor’s Introduction’, pp. 13, 17–21; Gullvâg, ‘Carnap, Innledning’ [Carnap, introduction], pp. 16–19, 59–64.
Later I shall discuss emphasis on the consideration for operationalisability more generally (in contrast to ostensive definitions in particular) (section III 2.2.2). In so doing, I shall give an account of how this consideration has been disguised in persuasive definitions of “meaning” and “science” (sections III 2.2.2 (3) cf. II B 7.3).
Ross, Om ret og retfcerdighed [on law and justice], pp. 52–53. The passages quoted were translated by me. In the English edition parts of the passages quoted were omitted or rewritten, see On Law and Justice, pp. 39–40.
Robinson, Definition, Chapter V §§5–6.
Næss, Interpretation and Preciseness, p. 147.
Næss, Logikk og metodelære [logic and methodology], p. 66; correspondingly in En del elementære logiske emner [some elementary topics in logic], p. 43.
Næss, Interpretation and Preciseness, p. 169.
Næss, Logikk og metodelære [logic and methodology], p. 69.
Næss, Interpretation and Preciseness, pp. 350 et seq. — In Interpretation and Preciseness, pp. 144–45, Næss introduces the term “genus definition” of large parts of what is here termed “denotation specification” (ostensive definitions probably fall outside). However, he keeps genus definitions separate from descriptive and normative definitions, and does not discuss them further. (Incidentally, Næss explicitly rejects placing the different definition concepts under a general concept of ‘definition’; see op. cit., p. 144.) — It is generally the case that concepts of ‘definition’ defined by means of a criterion ‘synonymity’ will often be, to a great degree or totally, incapable of capturing main groups of actually occurring propositions that contribute to determining the meanings of linguistic entities (contribute to determining concepts): first, propositions with a structuring function alone, without any naming function (section 4.2 (3)(b) cf. (4), above); secondly, denotation specifications where they have the form of an ostensive definition, other denotation specifications where they are incomplete or negative, often also other denotation specifications even if they are complete and positive (the present item (ii)); and finally connotation specifications where they are incomplete or negative (compare section 2.2 above and the account of actually occurring connotation specifications in section 5.1 above and sections 5.35.5 and 6, below).
Ofstad, ‘Om deskriptive definisjoner av begrepet rettsregel’ [on descriptive definitions of the concept of ‘legal rule’], pp. 49–51.
Op. cit., pp. 39–49.
F0llesdal/ Wall0e/ Elster, Argumentasjonsteori, sprtik og vitenskapsfilosofi [argumentation theory, language and the philosophy of science], p. 221.
Williams, ‘Language and the Law’, p. 388.
Ogden/ Richards, The Meaning of Meaning, p. 110 (their italics omitted).
Op. cit., p. 117.
See also op. cit., p. 118. — In the quotation in the text at note 31 above Ogden and Richards are concerned with arguing that it is words and not things that are the object of definition, that is to say, they discuss what is being defined, not what is defining. Even though the formulation in this quotation can be understood also as a standpoint on the latter question, it should be clearly apparent from the quotation in the text at note 32 above that this is not what they mean: First, they hardly require that words must be part of the constituent that is defining. Even though the example (“orange”) makes use of words in the constituent that is defining, this appears as secondary; to derive any benefit from the definition one must know that it is a colour that is being defined, and thus a pure pointing gesture at an orange thing would have sufficed. Secondly, they at any rate recognise pointing gestures and things as important elements in definitions.
Robinson, Definition, pp. 122–23; Austin, Sense and Sensibilia, p. 123 in note 1.
Robinson, Definition, p. 123.
See e.g. section 1–5 of the Creditors’ Right of Recovery Act (Act No. 59 of 8 June 1984): “In the present Act those who are deemed to be closely related to one another are … spouses, unmarried cohabitants, engaged parties, relatives in ascending and descending line, siblings, the said persons’ spouses and others who stand in a particularly close personal relationship to one another …” (my italics).
See e.g. section 3 of the Acquisition of Business Activity Act (Act No. 79 of 23 December 1994): “In the present Act … acquisition means: any form of transfer including purchase, barter, gratuitous transfer, lease, acquisition by inheritance or distribution of an estate, forced sale and expropriation” (my italics). See further the statutory definitions quoted above of “enkeltvedtak” [individual decision] (sections 5.1 (1) cf. 5.2 (1)) and “forbrukerkjgp” [consumer purchase] (section 5.2 (3)).
See e.g. section 1 of the Travel Guarantee Act (Act No. 72 of 12 June 1981): “In the present Act ”travel operator“ means any person who in return for any consideration organises travel with appurtenant provision of services, including transport and accommodation, and who …” (my italics).
See e.g. section 3 of the Regulations concerning animal health conditions for the importation and exportation of live poultry and eggs for hatching within the EEA (23 June 1994 No. 695; Norwegian Law Gazette, Part 1, p. 1076): “In the present Regulations poultry means: chickens, turkeys, geese, ducks, grouse, quails, pheasants, guinea hens and pigeons that are reared or kept in captivity for the purposes of breeding, production of meat or eggs for consumption, or the supply of game to be let loose” (my italics).
In all the examples mentioned above of denotation specification linked to the whole connotation specification (see note 37), the denotation specification is incomplete.
See e.g. section 2(a) of the Trade in Fertilisers Act (Act No. 83 of 4 December 1970): “In the present Act producing means: making, processing, mixing, packing and marking”; section 2 of the Register of Legal Entities Act (Act No. 15 of 3 June 1994): “In this Act affiliated register means: 1. The employers section of the register of employers/ employees … 2. Register of Business Enterprises … 3. The county governors’ registers of foundations … 4. [etc.]”.
Bentham, Essay on Logic, p. 248 (also in The Theory of Fictions, pp. 91–93), in which denotation specification is touched on under the names of “exemplification” and “enumeration”.
Eng, ‘The Doctrine of Precedent in English and Norwegian Law’, section 2.4.3.3.
The everyday experience of the existence of such knowledge has been made clearer in laboratory experiments concerning the ability to discriminate between figures, e.g. Chinese-like characters, see Hull, ‘Quantitative Aspects of the Evolution of Concepts’, in particular pp. 17 cf. 43, 67, 79–81, 84–85; Rommetveit, Sprkk, tanke og kommunikasjon [language, thought and communication], pp. 239–45, in particular 241 (bottom)-242 (top).
Compare Austin, ‘Other Minds’, pp. 52–53; Wittgenstein, Philosophische Untersuchungen, Part I, section 78.
Compare Wittgenstein, Bemerkungen über die Farben, Part I, section 68, Part III, sections 42, 86, 102, 127.
See e.g. Robinson, Definition, p. 126; Passmore, Philosophical Reasoning, pp. 113 et seq. — See also section 5.2 (5)(b) above.
See respectively Kant, Kritik der reinen Vernunft, B 171–72, 674, and Wittgenstein, Philosophische Untersuchungen, Part I, sections 201–02, 241–42.
See the references in section V 4.2.2 (1) below, in note 5.
Something different from there not being any clear relationship in fact between an assumption that qualified and trained lawyers have a distinctive application intuition and occurrence of denotation specification at the expense of connotation specification in these lawyers’ application of legal rules, is that assumption of a distinctive application intuition can bring about respect for the lawyer’s denotation specification. On the latter, see in more detail in section V 4.2.2 (1) below, after note 4.
Goffman, Asylums, p. 16: “By anchoring the initial definition of total institutions in [these five rough groupings], I hope to be able to discuss the general characteristics of the type without becoming tautological.”
Compare Fleischer, Anvendelse og fortolkning av dommer [application and interpretation of judgments], pp. 23–24 (“legal interpretation is to a certain extent in a position of its own on this point — that in practice it is the application, or the non-application, to the concrete instance, and not the determination of the proposition’s boundaries in general, that is the central thing”); Jareborg, ‘Regler och riktlinjer’ [rules and guidelines], p. 410 (“[in] all explanation of when a statutory provision is applicable … [it] is much more usual for one to use a denotative method of definition than an analytical one”); Frändberg, ‘Om tolkning och förstâelse’ [on interpretation and understanding], pp. 15–17 (“the judge’s statutory interpretation is an interpretation with a view to application [in contrast to] for example the literary theorist’s interpretation of literary works”); Alston, No Right to Complain About Being Poor’, pp. 91–92,98 (the most telling evidence of the jurisprudential value of the complaints procedure is the fact that the collected ‘views’ of [the Human Rights] Committee based
Compare Peczenik, Vad är rätt? [what is law?], pp. 648 et seq.; Ahiander, Ar juridiken en vetenskap? [is law a science?], p. 24; Eckhoff, Rettskildelcere [doctrine of the sources of law], 1st ed. pp. 310–11, 324–26; 3rd ed. pp. 320–22; MacCormick, Legal Reasoning and Legal Theory, pp. 112, 155–56, 194; Raz, The Morality of Freedom, pp. 321–66; Nagel, Mortal Questions, pp. 128–41; Posner, The Problems of Jurisprudence, p. 124; Greenawalt, Law and Objectivity, p. 152; Thagard, Coherence in Thought and Action, pp. 148, 242, 280 (bottom)-281 (top); Habermas, Faktizität und Geltung, p. 316 at and in note 33.
Compare item (b)(iii) below, at and in note 75.
Compare note 53 above.
I thus define my concept of ‘weighing and balancing norm’ via my concept of ‘concepts with evaluation prescription in their connotation’. Compare in contrast the concept formed in Sundby, Om normer [on norms], Part 2 (p. 200 et passim); Eckhoff/ Sundby, Rettssystemer [legal systems], Chapter 7 (p. 108 et passim). — The difference is due to the definition perspective here: Only against the background of the concept of ‘concepts with evaluation prescription in their connotation’ can one cognise instance-type propositions as a distinct definition method.
Sundby, Om normer [on norms], pp. 200–01.
Op. cit., p. 201.
Engisch, Die Idee der Konkretisierung in Recht und Rechtswissenschaft unserer Zeit, pp. 237–94, 308–12; Larenz, Methodenlehre der Rechtswissenschaft, pp. 216–24, 291–94, 461 et seq.; Kaufmann, Analogie und “Natur der Sache”, pp. 47–54, 74–76. — For a survey of the diversity of statements about “Typus” from different writers in different subjects, see in particular Engisch, Die Idee der Konkretisierung in Recht und Rechtswissenschaft unserer Zeit, pp. 237–62.
Kaufmann, Analogie und “Natur der Sache”, pp. 47–48: “Der Begriff … ist geschlossen, der Typus ist offen”; Larenz, Methodenlehre der Rechtswissenschaft, pp. 216–22: “Von einem ”Begriff’ im strengen Sinn läßt sich nur da sprechen, wo es möglich ist, ihn durch die vollständige Angabe der ihn kennzeichnenden Merkmale eindeutig zu definieren (p. 216); Ein Begriff ist durch seine Definition in der Weise festgelegt, daß er auf einen konkreten Vorgang oder Sachverhalt “nur dann und immer dann” anzuwenden ist, wenn in ihm sämtliche Merkmale der Definition anzutreffen sind. Für den Typus gilt dieser Satz nicht (p. 221).
“Concept” here used in its sense in this work (sections 3.2.2 (5)(d) and 4.1 (3), above), not limited in the way “Begriff” is (preceding note).
This applies to e.g. the discussion in Kaufmann, Analogie und “Natur der Sache”, pp. 47–54, 7576.
Immediately, in the present section 5.4.2 (1), and further, in the present section B in its entirety.
This applies to e.g. the discussion in Larenz, Methodenlehre der Rechtswissenschaft, pp. 218–24, 464–73.
In addition to the places referred to in notes 64 and 66 above, see Jorgensen, ‘Typologi og realisme’ [typology and realism], pp. 147–56, who under the basic terms includes large parts of legal methodology; Engisch, Einführung in das juristische Denken, p. 256 (“Es gibt unendlich viele Aspekte, unter denen der Typus rechtstheoretisch Verwendung finden kann”).
In contrast to earlier, when one attempted to attach the rule to a limited set of legally operative facts, e.g. whether the assumption was visible or not, general or individual, what the parties would have contracted on the issue, etc.; see Augdahl, Obligasjonsrett [law of obligations], pp. 146–47.
Op. cit., p. 147; Ot.prp. No. 5 1982–83 [proposal from the Government] (on section 36 of the Contracts Act), p. 35, second column.
Augdahl, Obligasjonsrett [law of obligations], p. 151.
Op. cit., p. 152.
Arnholm, Alminnelig avtalerett [general law of contract], p. 310. Correspondingly in Privatrett 11.• Avtaler [private law II: contracts], p. 322; L erebok i avtalerett [textbook in the law of contract], pp. 257–58.
Huser, Avtalesensur [policing contracts], p. 49.
On this provision see item (a) above, in note 54.
M. Andenæs, ‘Tolking av lover med bade strafferettslige og sivilrettslige sanksjoner — belyst ved tre av dem’ [interpretation of statutes with both criminal law and civil law sanctions — illuminated by three of them], p. 183: “[T]here is a sort of normal limit to what is to count as a lawful price, going at 15–20% in excess of the reasonable price.”
Rt. 1991/739 on p. 740; Rt. 1990/801 on p. 801.
Rt. 1985/727 on p. 727; see also the judgments mentioned in the preceding note, same places as mentioned there. — In relation to the main topic of the present work, language and argumentation, I designate the decisions of the courts by the common term “judgment”, irrespective of whether they are procedurally called “judgment”, “order”, “ruling”, “decision”, or something else (for example the decisions mentioned in the preceding note are orders in procedural terms).
Eng, ‘Begrepene ‘kompetanse’ og ‘gyldighet’ i juridisk argumentasjon’ [the concepts of ‘competence’ and ‘validity’ in legal argumentation], pp. 644–51.
Op. cit., pp. 650–51. There I also give an example for illustration.
This formulation is built on the pattern of Augdahl, Rettskilder [sources of law], p. 27. — I emphasise “described”: In conformity with the superordinate perspective and topic of the present work (Chapter I above) I neither justify nor criticise lawyers’ argumentation de lege lata. — Concerning “many central aspects”, but not all central aspects, that is, see section F below.
Eckhoff, Rettskildelcere [doctrine of the sources of law], 1st ed. pp. 152–53; essentially the same in 3rd ed. p. 135. — I should remind the reader (compare the present item (b), introductory remarks) that I take a standpoint solely on the examples’ (formal) property of being instance-type propositions, not on their tenability (according to their content). As I shall later come back to, I assume that in the doctrine of the sources of law there is less of a basis for instance-type propositions than is usually supposed (section III 2.2.6 (4)(b) below).
NOU 1987: 23 [Norwegian official reports], Retningslinjer for prioriteringer innen norsk helsetjeneste [guidelines for priorities within Norwegian health care], p. 77; NOU 1997: 18, Prioritering pâ ny. Gjennomgang av retningslinjer for prioriteringer innen norsk helsetjeneste [priorities again. Examination of guidelines for priorities within Norwegian health care], p. 94. For other examples, see item (d) below, concluding remarks (at and in notes 98 and 99).
Rt. 1964/502.
By the “strength” of instance-type propositions I do not mean any deeper unitary property, but those features which are mentioned in the main text in what follows, and which have in common that, with more or less determinate views on the part of language users as a starting point, they provide language users with a basis for ranking instance-type propositions. — Analysis of dis/agreement can be a reason for seeing these features in relation to one another: Formulations that show disagreement in one strength dimension can show agreement in another strength dimension or when several strength dimensions are seen in relation to one another (see the example at the end of the main text in the present item (c)).
Jareborg, ‘Regler och riktlinjer’ [rules and guidelines], pp. 388–89 including note 4, with further references.
Malt, ‘Svake normer’ [weak norms], pp. 175–79.
Jareborg, ‘Regler och riktlinjer’ [rules and guidelines], p. 389 in note 4: “exceptions are possible without reformulation of the rule”; Malt, ‘Svake normer’ [weak norms], p. 177: “a form of delegation … in that … the person applying the norm himself makes a decision with respect to whether or not a given instance shall be regulated by the norm consequence”.
I shall come back to the guideline structure of connotation specifications in section 6.2 (1) below.
See the last quotation in item (b)(i) above.
In the practice of the Supreme Court there is a certain development in the direction of weaker instance-type propositions in the case of rises and falls in prices; cf. Rt. 1988/276, that ascribes to a general rise in prices the effect of being a ground for revision (plenary session judgment concerning upward regulation of rent for leasehold property, in relation to a contract from 1899 that could not be terminated by the lessor; 11–6 decision). See further Rt. 1988/295, 1992/1387, 1992/1397, 1995/674. The discussions in these judgments are linked to the criterion ‘unreasonableness’ in section 36 of the Contracts Act, which in the practice of the courts seems to have gone a long way towards replacing the criterion ‘unreasonableness’ in the doctrine of subsequently failed contractual assumptions.
Compare Eng, U/enighetsanalyse — med særlig sikte pâ jus og allmenn rettsteori [analysis of dis/ agreement — with particular reference to law and legal theory], section IV 4.6.
Compare op. cit., sections IV 4.2–4.3.
Compare op. cit., section IV 4.5.
Rt. 1990/284 on pp. 293–94, cf. pp. 298–99: The Supreme Court in plenary session, referring to the considerations quoted, instructed courts and other lawyers on the denotation of the expression “reasonable price” in the case of a lessor’ s claim that the lessee purchase the property leased (more precisely it instructed that in relation to any increase in real value in areas where property was in ever increasing demand the said expression only covered half the increase).
Section 34, third paragraph, fourth sentence, cf. section 35, third paragraph, of the Children Act (Act No. 7 of 8 April 1981): “The decision shall first and foremost be guided by what is in the best interest of the child.”
So broad an instance-type proposition cannot be advanced de lege lata in relation to the criterion in the Children Act (preceding note). However, more narrowly it says in Innst. O. No. 30 1980–1981 [recommendation from the parliamentary committee], p. 14: “The Committee wishes to stress that in … the interpretation and application [of the criterion ‘in the best interest of the child’] significant weight must be placed on who has the stronger emotional contact with and has in fact had the care of the child. This will entail that the mother will in most cases continue to be given a prior right to a small child, when she has in actual fact had the main care of the child” (my italics). Such an instance-type proposition probably to a great extent corresponds to the conclusions of actual weighings and balancings from those applying the law, expert witnesses, and others carrying out weighings and balancings in child custody cases.
Eckhoff/ Smith, Forvaltningsrett [administrative law], pp. 306–10.
Rt. 1954/1156 on p. 1159; 1955/1162 on pp. 1165–66.
Rt. 1959/733 on p. 735.
I should remind the reader that I use the term “statutory” in a broad sense: of constitutions, statutes and regulations; and further that I use the plural form “legislators”: because in the case of all constitutions and statutes, and in the case of most regulations, a number of people are involved in the drafting of the text and its passing into law.
This denotation specification is intended to be complete in relation to decisions relating to public employment contracts, cf. Ot.prp. No. 27 1968–69 [proposal from the Government], pp. 11–13, 17, 32. Outside fall decisions concerning e.g. additional pay, grants, leave of absence, and schooling or courses as part of the contract of employment; see op. cit., pp. 11–13.
In Rt. 1994/1405 the denotation was extended in that a cohabitant was equated with a spouse in the use of the definition in relation to the rules concerning criminal liability for false statements.
Compare Innstilling av 1960 fra komitéen til revisjon av bygningsloven [report of 1960 from the committee appointed to revise the Building Act], p. 174: “Although some of the types of work that have been enumerated … are not really construction work (e.g. … demolishing …), the committee has found it justifiable and expedient to use the term ”building permission“ as a practical common term for those forms of permission this Chapter deals with.” — By Act No. 20 of 5 May 1995, to amend the Planning and Building Act, the term “building permission” was removed from the Act, see Ot.prp. No. 391993–94 [proposal from the Government], p. 110.
See e.g. the next two notes (respectively events and animals); and section 5.3 above, note 41 (actions and registers).
See e.g. section 4 of the Natural Damage Act (Act No. 7 of 25 March 1994): “By natural damage is meant damage directly arising from any natural disaster such as landslide, storm, flood, storm surge, earthquake, volcanic eruption or the like” (my italics). See also the definitions mentioned in item (b) below; and the definitions quoted or mentioned in section 5.3 above, in notes 37 and 38.
Be it on its own see e.g. section 3 of the Regulations for the combating of Newcastle disease and fowl pest (30 June 1994 No. 705; Norwegian Law Gazette, Part 1, p. 1144): “In these regulations … poultry means: chickens, turkeys, geese, ducks, grouse, quails, pheasants, guinea hens and pigeons”; see also the examples quoted in section 5.3 above, in note 41. Or be it in combination with connotation specification: see the example quoted in section 5.3 above, in note 39, which adds a connotation specification to the denotation specification just quoted. — However, even if the legislators have meant a denotation specification to be complete, the Supreme Court considers itself entitled to limit or extend it out of general considerations for reasonableness or justice, see e.g. what is said, at and in note 102 above, about the definition of “a person’s closest relatives” in the Criminal Justice Act.
Another cause of discrepancy may be that one associates feelings with words, and that in the subsumption one lets one’s feelings override the connotation specification; compare Robinson, Definition, pp. 115–16 (“proletarian art”, “a native”, “realistic art”, “propaganda”, “money”). Yet another cause may be that one attaches to words religious, philosophical or other tenets to which one has an ambivalent relationship; compare Passmore, Philosophical Reasoning, pp. 115–18 (“miracle”, “sacred”, “devil”, “free will”). — In philosophy, discrepancy between connotation specification on the one hand and the denotation in linguistic practice on the other (together with other discrepancies between general propositions and individual instances) has led to individual-instance reminders’ being cultivated as a method of its own: Passmore, Philosophical Reasoning, pp. 8–11; even cultivated as the (or as something approaching the) specifically philosophical method: Moore, ‘Hume’s Theory Examined’, pp. 78 cf. 65, 71–72; ‘A Defence of Common Sense’, pp. 127–28; ‘Proof of an External World’, pp. 165–67; ‘Certainty’, pp. 188 cf. 171; Wittgenstein, Philosophische Untersuchungen, Part I, section 127 (“Die Arbeit des Philosophen ist ein Zusammentragen von Erinnerungen zu einem bestimmten Zweck”), cf. more concretely e.g. the first three quotations in section 3.2.2 (3)(a) above; Austin, Sense and Sensibilia, pp. 3, 83, 134, cf. more concretely e.g. pp. 8–9, 12–14, 16–19, 22–23, 33–43, 65–77; Wisdom, ‘G. E. Moore’, p. 51 (“the revival of a particular case is … part of what in philosophy we aim at, a renewed view of the manifold of particular cases covered by our general terms”). — An example from legal theory of a corresponding approach is Llewellyn, The Common Law Tradition (“in all … matters in this study … I preach the neglected beauty of the obvious”, p. 339, see also pp. 142, 156; see for illustration his mapping of fourteen “steadying factors” in the application of the law, pp. 19–51, and of sixty-four ways of using previous judgments as arguments, pp. 77–91).
The term “explicit definition” (or its equivalent in other languages) is usually defined through the criterion ‘the linguistic entity that is to be defined is placed alone on the left side in the definition’; see Dubislav, Die Definition, p. 39; Gullvâg, ‘Carnap, Innledning’ [Carnap, introduction], p. 53; Marc-Wogau, ‘Definisjon’ [definition], p. 36; Weinberger, Rechtslogik, p. 365. The term is in these cases contrasted with the terminology that is to be mentioned in notes 112 and 113 below. — Many of the definition types that are mapped in the present work are, however, not explicit definitions even if they satisfy the said criterion, because they do not satisfy further requirements that are usually made, namely that the formulation that is defining shall be able to replace the linguistic entity that is being defined (“substitutability”); cf. the fact that the definition concept in the present work also covers e.g. incomplete or negative specifications of connotation or denotation. — I have previously pointed to the fact that synonymity requirements in relation to a general definition concept often to a high degree or completely render the general concept incapable of capturing main groups of actually occurring propositions that contribute to determining the meanings of linguistic entities (contribute to determining concepts) (section 5.2 (6)(b)(ii) above, in note 26). In the present note, I have pointed to the fact that substitutability requirements in relation to a sub-concept defined by means of the starting criterion ‘the linguistic entity that is to be defined is placed alone on the left side in the definition’, render the sub-concept incapable of capturing main groups of actually occurring propositions that fall under the starting criterion. We can thus conclude that even if synonymity or substitutability should be fitting as concept criteria in relation to ideal requirements in philosophy and logic (section 2.2 above), synonymity or substitutability are not fitting as concept criteria when the aim of the conceptualisation is insight into how one in fact proceeds when, in analysis and argumentation formulated in everyday language, one determines the meanings of linguistic entities (determines concepts) (section 2.1 above, cf. the present section B in its entirety).
E.g. truth-functional definitions of logical words (“not”, “and”, “or”, “if’, ”only if’): Strawson, Introduction to Logical Theory, pp. 66–69; Robinson, Definition, p. 117 (“matrix definition”); Næss, Logikk og metodelære [logic and methodology], pp. 37 et seq.
E.g. definition of the word “point” in geometry by referring to the basic propositions of geometry and the role the word plays in them: Hempel, ‘Geometry and Empirical Science’, pp. 1640–41.
E.g. definition of a theoretical term in empirical science, e.g. names of elementary particles in physics or the term “IQ” in psychology, by referring to the laws of the science concerned and the role the term plays in them: Carnap, ‘The Interpretation of Physics’, pp. 317–18; ‘The Methodological Character of Theoretical Concepts’, pp. 45,48,49–52,66 et seq.
Terms that have been used of varying parts of the definition area now outlined are “axiomatic definition”, “definition by postulates (axioms)”, and “implicit definition”; see Dubislav, Die Definition, p. 42; Gullvâg, ‘Carnap, Innledning’ [Carnap, introduction], pp. 57–58; Marc-Wogau, ‘Definisjon’ [definition], p. 37; Weinberger, Rechtslogik, pp. 392–93.
Bentham, Essay on Logic, pp. 246–48, also in The Theory of Fictions, pp. 86–91; The Theory of Fictions, pp. 138–39; A Fragment on Government, p. 106 in note 1 item (5); Of Laws in General, pp. 294–95. — Other terms that have been used of this method of definition are “contextual definition” and “definition in use”; in addition “implicit definition” has been used here too (compare the preceding note); see Dubislav, Die Definition, pp. 39–40; Gullvâg, ‘Carnap, Innledning’ [Carnap, introduction], pp. 54–55; Marc-Wogau, ‘Definitjon’ [definition], pp. 36–37; Weinberger, Rechtslogik, pp. 366–67. — The most well-known example from philosophy of the use of this method of definition is Russell’s analysis of definite descriptions, an analysis that commonly goes under the name of “contextual definition”. For Russell’s discussions, see in particular ‘On Denoting’, passim, and Introduction to Mathematical Philosophy, pp. 167–80.
See e.g. sections 5.2 (6) on “definition” and 5.3 on “connotation specification” and “denotation specification”.
See section 7.2 (1) and Chapter IV, below.
See sections 7.2 (1) and 7.3.3 (2)(c), below.
On the concept of ‘contract’, see sections IV 2.2 (6)(b) and 3.3.1 (3)(b), below. In general on concepts in legal rules, see the next note.
I shall later show that evaluation prescription in the connotation is a systematic feature of concepts in legal rules; see sections F 3.2.2 (1)(a)(i) - (ii) cf. 2.1 (2), below.
See section 4.1 (1)(c)(iii) above on this substitution perspective. There I quote Wittgenstein’s use of this perspective in the case of terms relating to pain, and outline how I myself used this perspective in analysing the concept of ‘declaration of intent’.
In actually occurring language and argumentation, but not definitionally in the conceptualisation here. — I should remind the reader that I do not operate with any definitional difference between descriptive propositions and normative propositions with respect to truth value; see section A 5 (2)(b) above, at and in note 10, compared with item (c) below.
Sundby, ‘Kritisk juss: hva er det?’ [critical law: what is that?], pp. 119–20: “[L]egal method [is] … practical argumentation … with one’s hands tied” (compare same writer, Om normer [on norms], p. 259); MacCormick, Legal Reasoning and Legal Theory, p. 272: “[L]egal reasoning is a special, highly institutionalized and formalized, type of moral reasoning.” We find basically the same, but developed in a perspective different from the perspective in the present work, in Alexy, Theorie der Juristischen Argumentation, pp. 261 et seq.; Aarnio/ Alexy/ Peczenik, ‘The Foundation of Legal Reasoning’, p. 260.
Foot, ‘Morality and Art’, p. 134: “ ‘Disagree’ is … ‘a light word’. If you find … some food delicious and I do not we can say ‘how we disagree’.”
Scruton, Art and Imagination, pp. 137–38, points to the ranking relationship between propositions relating to morals, aesthetics, and food and drink. See also Lovibond, Realism and Imagination in Ethics, pp. 66–68.
Cf. “discretionary provisions”, “discretionary law”, “flexible rules”, “legal standards”, “Generalklauseln” [general clauses, blanket clauses] versus norms formulated through the use of figures; see Sundby, Om normer [on norms], pp. 201–22, 231–54.
Cf. a basic evaluation prescription in the doctrine of the sources of law versus evaluation prescriptions specific to the individual legal rules; see section 5.4.2 (1)(b)(v) above.
Cf. interpretation in areas in which statutory authority is required versus interpretation in areas in which this is not a requirement (in/ outside “the area of the principle of legality”); see Thornstedt, ‘Legalitet och teleologisk metod i straffrätten’ [legality and teleological method in criminal law]; Eckhoff, Rettskildelcere [doctrine of the sources of law], pp. 107–11; Rostad, ‘Lovprinsippet i straffe-retten’ [the principle of statutory authority in criminal law].
Cf. the brief and syllogistic ways of giving grounds in French judgments versus the literary style of English and American judgments; see Goutal, ‘Characteristics of Judicial Style in France, Britain and the U.S.A.’, pp. 45–51, 59–65; Wells, ‘French and American Judicial Opinions’, pp. 85–99; MacCormick/ Summers (eds.), Interpreting Precedents: A Comparative Study, pp. 106–08, 318–20, 360–61, 448–50.
On the origins and effects of the principle of legality in criminal law (compare note 12 above), see Honkasalo, ‘Nulla Poena Sine Lege’, in particular pp. 1–36, 57 et seq.
Strömholm, Rätt, rättskällor och rättstillämpning [law, sources of law and application of the law], p. 426: “If one looks at the discussion about different methods of applying the law in a historical perspective, one finds that the pendulum has swung between two poles. … At one end of the scale one finds the Age of Enlightenment’s and the early 19th century codifications’ dream of a body of legislation that was so clear and complete that the application of the law would be purely mechanical…. At the other extreme of the scale one finds the free law school flourishing at the beginning of the 20th century, which wished to leave it to the courts to decide the individual instances virtually unfettered.”
More detail on the terminology, section IV 1 below, in the first indent.
In this connection I should remind the reader that I use the term “normative proposition” of three main groups of propositions: first, of duty, competence or qualification propositions; secondly, of value propositions; and finally, of decision propositions (section A 5 (2)(a) above).
Dworkin, ‘The Model of Rules I’, pp. 22, 24–28; ‘The Model of Rules II’, pp. 71–74.
Eckhoff/ Sundby, Rettssystemer [legal systems], Chapter 7; Rechtssysteme, Chapter 6; Eng, ‘Son-dringen mellom regler og retningslinjer’ [the distinction between rules and guidelines]; both with further references. See further Alexy, Theorie der Grundrechte, pp. 71–99; ‘On the Structure of Legal Principles’; Hart, The Concept of Law, 2nd ed. (Postscript), pp. 259–63.
Eckhoff/ Sundby, Rettssystemer [legal systems], p. 109 (I have reversed the order of the two sentences in the quotation). — Eckhoff’s determination of the concept essentially corresponds with what I had concluded in Eng, ‘Sondringen mellom regler og retningslinjer’ [the distinction between rules and guidelines], p. 482.
With its accompanying concepts of ‘family resemblance concept’ and ‘family resemblance word’.
Waismann, ‘Verifiability’, in particular pp. 119–23.
Wittgenstein, Philosophische Untersuchungen, Part I, sections 142 cf. 80; Zettel, section 350; Austin, ‘Other Minds’, pp. 56–57; Sense and Sensibilia, pp. 122–23; Searle, ‘Metaphor’, pp. 79–80; ‘Literal Meaning’, in particular pp. 120–29; Andersson/ Furberg, Sprtik och pâverkan [language and influence], pp. 119–20. — Waismann, ‘Verifiability’, pp. 120 (bottom)-121 (top), says that open texture is not a feature of all empirical concepts. I cannot, however, see that he gives any examples of empirical concepts without open texture, nor can I find any example myself.
See the references in the preceding note to Wittgenstein, Austin (‘Other Minds’), Searle, and Andersson/ Furberg; see further Fodor, ‘On Knowing What We Would Say’, pp. 132–33; Margalit, ‘Open Texture’, pp. 146–48,150.
Another matter is what weight arguments from what one “may imagine” which ignore the presupposed frames have on the level of fundamental philosophical positions; for problematisations of this, see e.g. Braithwaite, ‘Verbal Ambiguity and Philosophical Analysis’, pp. 152–53; Osterberg, Forstdelsesformer [forms of understanding], pp. 23 et seq., 32–34; Eames, ‘A. J. Ayer’s Philosophical Method’, pp. 169–72. In conformity with the superordinate perspective and topic of the work (Chapter I and section II A 8, above) I do not take any standpoint on this question in the present work.
Rawls, A Theory of Justice, 1st ed. p. 5, 2nd ed. loc. cit.: “[I]t seems natural to think of the concept of justice as distinct from the various conceptions of justice and as being specified by the role which … these different conceptions … have in common.”
Loc. cit.: “Those who hold different conceptions of justice can … still agree that institutions are just when no arbitrary distinctions are made between persons in [for the present purpose it is sufficient to quote schematically] … and when the rules determine a proper balance between [as in the preceding parenthesis] … Men can agree to this description of just institutions since the notions of an arbitrary distinction and of a proper balance, which are included in the concept of justice, are left open for each to interpret according to the principles of justice that he accepts.” — The same appears to apply also in the case of other occurrences of the pair of terms “concept”—“conceptions”; see e.g. Dworkin, ‘Constitutional Cases’, pp. 134–36; ‘A Reply to Critics’, pp. 351–53; Law’s Empire, pp. 71, 74, 92–94; Aarnio/ Alexy/ Peczenik, ‘The Foundation of Legal Reasoning’, p. 267.
The selectivity can have different degrees; towards the far end of the scale lies “absolutisation of aspects”, see sections 7.3.3 (2)(b) and IV 3.2 (1), below.
On influencing action through structuring alone (the paragraph containing the present note, and the preceding paragraph), see section III 2.2.5 below.
Weaver, The Ethics of Rhetoric, pp. 115–42 (heading): “Some rhetorical aspects of grammatical categories”; Rycroft, ‘An Enquiry into the Function of Words in the Psycho-Analytical Situation’, p. 414: “Even language which is designed to avoid imaginative reverberations fails to do so since it evokes a feeling of dryness.”
The appeal function often constitutes a part of what is discussed under the name of “emotive” function; see Ogden/ Richards, The Meaning of Meaning, pp. 149 et seq., cf. pp. 123–26, 223–28; Stevenson, see note 6 below; Rommetveit, Sprâk, tanke og kommunikasjon [language, thought and communication], pp. 74–82.
Lewis, Studies in Words, pp. 7–8, 222–26.
Stevenson, ‘The Emotive Meaning of Ethical Terms’, in particular pp. 18–22; Ethics and Language, pp. 37–80, in particular pp. 59–60.
Stevenson, Ethics and Language, in particular pp. 41–59.
Seip, ‘ “Ekte” og “uekte” vurderinger i historieforskningen’ [genuine and spurious evaluations in historical research], p. 187.
The interpretation of contracts was a central area for “will theories” and for lawyers’ discussions of these. On lines of development in legal dogmatic literature on interpretation of contracts, see Huser, Avtaletolking [interpretation of contracts], Chapter 3, in particular pp. 181–220, 241–49, 269–301.
Compare Knoph, ‘Nogen ord om dommerens stilling til kutymene’ [some words on the position and attitude of the judge in relation to usages in trade], p. 307; Stang, Innledning til formueretten [introduction to the law of obligations and property], pp. 253, 254, 450; Arnholm, Alminnelig avtalerett [general law of contract], pp. 127, 129–30; Privatrett II. Avtaler [private law II: contracts], pp. 38–39; Lcerebok i avtalerett [textbook in the law of contract], pp. 33–34; Hov, Avtalerett [law of contract], pp. 74–75; Selvig, Kontraktsretten [law of contract], pp. 543–44; Krüger, Norsk kontraktsrett [Norwegian law of contract], pp. 508, 511.
However, very few go as far as Hägerström, Olivecrona and Ross, who in their discussions of the question of criteria in private law for the transition from preliminaries to dispositive acts claim that it is logically impossible for dispositive intent (i.e. intention to enter into legal relations) to be a criterion; see Eng, ‘ “Hva er en viljeserklæring?”’ [“what is a declaration of intent”].
Heider, The Psychology of Interpersonal Relations, pp. 174–217.
See Eng, U/enighetsanalyse — med scerlig sikte pd jus og allmenn rettsteori [analysis of dis/agreement — with particular reference to law and legal theory], section IV 4.6, for a more detailed discussion of the operation of this causal factor in relation to language and argumentation.
Compare Furberg, Saying and Meaning, pp. 68–69, on the use of the positively loaded word “true” together with negatively loaded words and expressions (“true scoundrel”).
See in more detail in Chapter IV below. See also section III 2.4.2 (1) below.
Stevenson, ‘Persuasive Definitions’, p. 35; Ethics and Language, p. 213.
Nor does Stevenson in all probability intend to lay down conscious intention as a concept criterion, see the definition quoted in the indent above, and his corresponding statement in Ethics and Language, p. 210. — His statements do not, however, seem completely consistent, see ‘Persuasive Definitions’, p. 38, where conscious intention is, as far as I can see, laid down as a concept criterion.
Cicero, Brutus, sections 184–88: “What is right or wrong in a man’s speaking I shall be able to judge, provided I have the ability and knowledge to judge; but what sort of an orator a man is can only be recognized from what his oratory effects. … [W]hether or not the orator succeeds in conveying to his listeners the emotions which he wishes to convey, can only be judged by the assent of the multitude and the approbation of the people. For that reason, as to the question whether an orator is good or bad, there has never been disagreement between experts and the common people. … [T]he very mark of supreme oratory [is] that the supreme orator is recognized by the people. … [W]hat the multitude approves must win the approval of experts.”
See item (2) above.
Stevenson, ‘Persuasive Definitions’, pp. 39–40; Ethics and Language, p. 210.
Compare Stevenson, Ethics and Language, pp. 279–81.
On this case, see Stevenson, ‘Persuasive Definitions’, p. 39; Ethics and Language, pp. 277–78.
Stevenson, Ethics and Language, p. 281.
H.F. Dahl, ‘Obituary of Jens Arup Seip’.
Ross, Om ret og retfærdighed [on law and justice], pp. 52–53, and p. 55 (final paragraph of the quotation). The passages quoted were translated by me. In the English edition of 1958, On Law and Justice, parts of the passages quoted were omitted or rewritten, see On Law and Justice, pp. 39–40.
Ross, Om ret og retfcerdighed [on law and justice], p. 59. The passages quoted were translated by
Sundby, Om normer [on norms], p. 265.
On some central ontological and epistemological premisses on which Ross builds his definition, see section 5.2 (5)(b)(ii) cf. (i), above.
Petersen, Informel ret pd kvindearbejdspladser [informal law in women’s workplaces], pp. 15–16.
Op. cit., p. 92.
Op. cit., pp. 31–104 (Part I).
Loc. cit., cf. also the heading of Part I.
Op. cit., p. 65.
Doubled Bernt, Retten og vitenskapen [the law and science]. The following quotations are from this work.
These are their exact words. — The same comment applies to the following quotations.
Compare Eng, U/enighetsanalyse — med særlig sikte pâ jus og allmenn rettsteori [analysis of dis/ agreement — with particular reference to law and legal theory], section IV 4.4 (7).
Sundby, Om normer [on norms], pp. 118–19.
Johnsen, ‘Anmeldelse av Sundby, Om normer’ [review of Sundby, on norms], p. 168.
TranOy, ‘Anmeldelse av Sundby, Om normer’ [review of Sundby, on norms], p. 477.
Finstad, ‘Forord’ [foreword]. — It is apparent from the context that Finstad is advancing this formulation on behalf of another person. Here the formulation is used only in its capacity of being an illustrative example of a way of using language.
See section A 3 for an overview of this distinction and section 4 in the present section B for a more thorough discussion.
In contrast to cognition and expression of the fact that phenomena can be seen from a logically speaking infinite number of viewpoints, and that the importance of an aspect is relative to the language user’s interests; see section III 2.2.4 (3) below.
On such intensifiers, see Stevenson, ‘Persuasive Definitions’, pp. 35–36; Austin, Sense and Sensibilia, pp. 68–77; Lakoff/ Johnson, Metaphors We Live By, pp. 123–24; Furberg, Saying and Meaning, pp. 60(62)-70; Andersson/ Furberg, Sprâk och pâverkan [language and influence], pp. 170(171)75; Zapffe, Indfpring i littercer Dramaturgi [introduction to literary dramaturgy], p. 24.
The combination of persuasive definitions and absolutisation of aspects is a widespread way of linguistically veiling one’s evaluations and choices; see section IV 3.2 (1) below.
Stevenson, ‘Persuasive Definitions’, pp. 38–39, seems to lay down absolutisation of aspects as a concept criterion: “[W]hen [the definition] in no way suggests that this is the one legitimate sort of classification, then the definition will not be called persuasive” (Stevenson’s italics). In Ethics and Language, absolutisation of aspects has, on the other hand, the status of an (often occurring) empirical feature; see e.g. pp. 213–14.
As examples, see from respectively philosophy, social science, history, and law, Hurley, ‘Objectivity and Disagreement’, p. 83; Lukes, Power: A Radical View, pp. 9, 26; Foner, The Story of American Freedom, p. xiv; O’Fallon, ‘Adjudication and Contested Concepts: The Case of Equal Protection’, pp. 20, cf. 22 et seq.
Gallie, ‘Essentially Contested Concepts’, p. 169.
Op. cit., pp. 171–80.
Op. cit., p. 171: “[An essentially contested concept] must be appraisive in the sense that it signifies or accredits some kind of valued achievement” (Gallie’s italics omitted).
Op. cit., pp. 168, cf. 180–87: “work of art”, “democracy”, “Christian doctrine”.
See in this connection the fact that Gallie alternates between “concept” and “term” in a way that suggests he does not ascribe to this distinction any significance specific to his conceptualisation. For example he writes (op. cit., p. 168): “We find groups of people disagreeing about the proper use of the concepts, e.g., of art, of democracy, of the Christian tradition. When we examine the different uses of these terms …”. And for example he alternates without further explanation between “appraisive concept” (op. cit., p. 171; see the quotation in note 49 above) and “appraisive term” (op. cit., pp. 180, 182).
See section 4.2 (5) above on a number of factors that may explain what name an area acquires, and whether the area gains ground or is impeded because of the name.
On invocation of normative propositions without going via persuasive definitions, see Sundby, Om normer [on norms], pp. 174–76; Eckhoff/ Sundby, Rettssystemer [legal systems], pp. 64–65; Rechtssysteme, pp. 58–59.
Concerning the use of the word “strength”, the same applies here as in the case of definitions in the form of instance-type propositions (section 5.4.2 (1)(c) above): By the “strength” of normative definitions I do not mean any deeper unitary property, but those features which are mentioned in the main text in what follows, and which have in common that, with more or less determinate views on the part of language users as a starting point, they provide language users with a basis for ranking instance-type propositions. — Analysis of dis/agreement can be a reason for seeing these features in relation to one another: Formulations that show disagreement in one strength dimension can show agreement in another strength dimension or when several strength dimensions are seen in relation to one another.
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Eng, S. (2003). Definitions. In: Analysis of Dis/Agreement — with particular reference to Law and Legal Theory. Law and Philosophy Library, vol 66. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0381-9_3
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