Law, Institution and Legal Politics: Fundamental Problems of Legal Theory and Social Philosophy

288 Pages·1991·10.431 MB·English

by  Ota Weinberger (auth.)

LAW, INSTITUTION AND LEGAL POLITICS
Law and Philosophy Library
VOLUME 14
Managing Editors
ALAN MABE, Department of Philosophy, Florida State University,
Tallahassee, Florida 32306, U.S.A.
MICHAEL D. BA YLESt, Department of Philosophy, Florida State
University, Tallahassee, Florida 32306, U.S.A.
AULIS AARNIO, Department of Civil Law, University ofH elsinki,
Vuorikatu 5c, SF-OOIOO Helsinki, Finland
Editorial Advisory Board
ROBERT ALEXY, Lehrstuhlfur Offentfiches Recht und Rechtsphilosophie,
Christian Albrechts-Universitiit, Kiel
GEORGE P. FLETCHER, School of Law, Columbia University
ERNESTO GARZON VALDES, lnstitut fiir Politikwissenschaft,
Johannes Gutenberg Universitat Mainz
JOHN KLEINIG, Department of Law, Police Science and Criminal
Justice Administration, John Jay College of Criminal Justice,
City University of New York
NICOLA LACEY, New College, Oxford University
NEIL MacCORMICK, Centre for Criminology and the Social and
Philosophical Study of Law, Faculty ofL aw, University of Edinburgh
ALEKSANDER PECZENIK, Juridiska Institutionen, University ofL und
NIGEL SIMMONDS, Corpus Christi College, Cambridge University
ROBERT S. SUMMERS, School of Law, Cornell University
ALICE ERH-SOON TAY, Faculty of Law, University of Sydney
ERNEST J. WEINRIB, Faculty of Law, University of Toronto
CARL WELLMAN, Department of Philosophy, Washington University
aTA WEINBERGER
University ofGraz, Austria
LA W, INSTITUTION
AND
LEGAL POLITICS
Fundamental Problems ofL egal Theory
and Social Philosophy
SPRINGER -SCIENCE+BUSINESS MEDIA, B.V.
Library of Congress Cataloging-in-Publication Data
He i nberger, Ota.
LaN, institut ion, Ind legal pOlitics : fundamental problels of
legal theory and social phllosophy I by Ota Heinberger.
p. cm. -- (LaN and phllosophy library ; v. 14)
Includes bibliographical references (p. ).
ISBN 978-94-010-5530-7 ISBN 978-94-011-3458-3 (eBook)
DOI 10.1007/978-94-011-3458-3
1. Sociological jurisprudence. 2. Jurisprudence. 3. Legal
posltlvlsm. 4. Justlce. 5. Law--Phllosophy. 1. Tltle.
I!. Series.
K310.H445 1991
340'. ii5--dc20 91-7104
ISBN 978-94-010-5530-7
English translation of: Ota Weinberger,
Recht, Institution und Rechtspolitik;
Stuttgart, Franz Steiner Verlag Wiesbaden GmbH, 1987.
Printed on acid-free paper
AlI Rights Reserved
© 1991 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 1991
Softcover reprint ofthe hardcover 1s t edition 1991
No part of the material protected by tiris copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanica1,
including photocopying, recording or by any information storage and
retrieval systcm, without writtcn permission from thc copyright owner.
TABLE OF CONTENTS
Foreword
ix
Author's Preface xiii
A. THEORETICAL BASES
I. Elements ofInstitutional Legal Positivism 3
1. The Ontology of Nonnative Institutionalism 3
2. The Language of Practical Realms 5
3. The Logic of Practical Thinking 8
4. Why do I Conceive of the Theory of Action as Formalist
and why as Finalist? 12
5. Comments on the Definition and the Systematics of Institutions 18
6. Some Legal-Philosophical Implications of Normative Institutionalism 24
7. Why Legal Positivism? 29
II. Towards a Formal-Teleological Theory of Action 30
1. Starting Points 30
2. Common-Sense Theory of Action 34
3. Behaviour as Transfonnation. Description of Actions.
Meaningful Actions 35
4. Scope for Action and Freedom 37
5. Action as a Process of Selection based on Infonnation 43
6. Identity and Difference of Actions 46
7. Teleology 48
7.1.The Relation between Teleology and Causality 49
7.2. Some Remarks on the Principle of Causality 50
7.3.Linear Causality and Causal Networks 51
7.4. Some Notes on the Ontology of Ends 52
7.5. Discovery, Optimisation and Choice of Means 55
8. On the Problem of the Dynamics of the System of Ends 62
9. Reducing the Complexity of Teleological Reflection 63
10. Remarks on the Methodology of the Analysis of Action 65
ID. The Significance of Logic for Modem Legal Theory.
Fundamental Problems of Institutionalist Normativism 70
1. Main Areas of Logical Analysis in the Field of Jurisprudence 70
1.1. Logic as the Basis of the Structure Theory of Law 70
1.2. Rational Legal Argumentation 71
2. Logic, Law, and the Problems of the Logic of Nonns 72
vi
2.1. The Semantic Basis of the Logic of Nonns and Action-related
(or Practical) Disciplines 73
2.2. The Existence of Normative Regulations and the Institutionalist
Conception of Law 74
2.3. Institutionalist Nonnativism and the Logic of Nonns 75
3. The Idea of a Logic of Nonns. Remarks on a Few Fundamental
Problems 77
3.1. The Semantics of the Nonnative Sentences 77
3.2. Nonnative Sentence and Truth Value 80
3.3. Are there Nonnological Inferences? 81
3.4. Logic of Nonns or Deontic Logic? 82
3.5. The Meta-postulate of the Non-derivability of 'Ought'
from 'Is' and of 'Is' from 'Ought' 84
3.6. Compound Normative Sentences, particularly the Hypothetical
Nonnative Sentence 85
4. The Institutionalist Structure Theory of Law 86
5. The Plausibility Argumentation and Legal Henneneutics in the
Conception of Logicism 88
B. TREATISES ON LEGAL THEORY AND LEGAL SOCIOLOGY
IV. Ontology, Henneneutics and the Concept of Valid Law 93
1. The Legal Problem of Validity 93
2. 'Is' and 'Ought' 95
3. The Field of Logical Operations 99
4. Institutional Ontology of Nonns 100
5. The Juridical Definition of Valid Law 101
6. Legal Validity and Henneneutics 105
7. Decision-Making Practice and Valid Law 106
8. Law and Purpose: On the Debate between Formalism
and Instrumentalism 107
V. Constitutional Theory in the Light of the New Institutionalism III
1. Preliminary Remarks Concerning Terminology III
2. The Projected Task III
3. Fundamental Problems of Constitutional Theory 112
4. Theses of Institutional Legal Positivism which are relevant to the
Constitutional Theory 112
5. Comments on the Fundamental Problems of the Constitutional
Theory 116
5.1. State and Constitution 116
5.2. The Indispensability of the Constitution for the Existence
of the State 117
5.3. The Effectiveness of the Constitution 117
vii
5.4. The Institutional Unity of the System of Legal Sources 118
5.5. The Legal Stabilization of the Constitution: The Law
establishing the Constitution (the Basic Law, the Con
stitutional Charter) 119
5.6. The Essential Content of the Constitution 119
5.7. The Institutional Conception of Constitutional Knowledge 121
6. Political Power and the Structure of the Constitution 122
7. The Problem of Legitimacy 126
8. The Constitution and the Governing Ideas of Democracy 128
VI. The Formal-teleological Theory of Action and Criminal Law 133
1. Some Problems Facing Criminal Law and the Theory of
Action and the Goals of my Investigation 133
2. Characteristic Features of the Formal-teleological Theory of Action 134
3. The Concept of 'Institutional Legal Positivism' 137
4. Fundamental Principles of the Teleological Theory of Action
in Relation to Criminal Law 138
5. 'Action' and 'Omission' in Criminal Law Doctrine 140
6. The Generic Concept of Crime in Criminal Law 143
7. The Concept of Guilt 144
8. Notes on the Metatheory of Subsumption in Criminal Law 145
VII. Institutional Theory and Institutional Legal Positivism 148
1. The Program of my Inquiry 148
2. A Characterisation of Institutional Legal Positivism 149
3. My Concept of Action and the Semantic Foundations of
Practical Philosophy 151
4. The Concept of the Institution and its Typology 154
5. Institutional Theory in Modem Jurisprudence 163
6. Institutional Theories in Sociology 173
7. Institutional Legal Positivism contrasted with Juristic and
Sociological Institutional Theories 178
8. Institutional Normativism and Sociology 183
VIII. Sociology and the Normative Institutional Theory.
Reflections on Helmut Schelsky's Institutional Theory from
the Point of View of the Normative Institutional Ontology 186
Introduction 186
1. Behaviour and Action 186
2. The Language of Practical Philosophy 190
3. Normative Institutional Ontology 192
4. The Role of the Law in Schelsky's Theory 196
5. Schelsky and Luhmann's System-theoretical Method 200
viii
6. Theses for a Theoretical Sociology 205
C. TREATISES ON LEGAL POLmCS AND TIIEORY OF JUSTICE
IX. Legal-Political Analysis of Institutions 209
1. Legal Policy as a Scientific Problem of our Time 209
2. The Relevance of the Legal-Philosophical Approach to
Legal-political Analyses 210
3. Characterization of the Science of Legal Policy 212
4. Rational Thinking and Practical Cognition 213
5. Two Types of Legal Argumentation 221
6. Rationality and the Legal-political Discussion 222
7. Types of Legal-political Argumentation 222
8. The Sources of Practical Dissent and of the Search for Consensus 226
9. Common Flaws in Legal-Political Argumentations 227
10. The Conception of Democracy and Legal Policy 229
11. A Functional Analysis of Institutions and Democratic
Legal Policy 233
12. Democracy and Power 237
13. Determinants of Political Control 238
14. The Role of the Sciences and of Experts in a Democracy 240
15. Democratic Legal Policy and the Concept of Justice 242
X. The Conditio Humana and the Ideal of Justice 247
1. The Role of the Theory of Justice 247
2. The Anthropological Approach to the Problem of Justice 248
3. Ideals of Justice as Determinants of Action 249
4. The Analytical and Dialectic Character of Reflections on Justice 251
5. Formal Postulates of Justice 252
6. Natural Law or Convictions of Justice? 255
7. Postulates of the Just Application of the Law 255
8. Balanced Role-playas a Postulate of Justice 256
9. Collective Action 257
10. Present-day Aspects of the Problems of Justice 257
Bibliography 261
Original Sources 275
FOREWORD
It gives me great pleasure to offer this foreword to the present work of
my admired friend and respected colleague Ota Weinberger. Apart from the
essays of his which were published in our joint work An Institutional Theory of
Law: New Approaches to Legal Positivism in 1986, relatively little of Wein
berger's work is available in English. This is the more to be regretted, since his
is work of particular interest to jurists of the English-speaking world both in
view of its origins and in respect of its content
As to its origins, Weinberger war reared as a student of the Pure Theory
of Law, a theory which in its Kelsenian form has aroused very great interest and
has had considerable influence among anglophoone scholars - perhaps even
more than in the Germanic countries. Less well known is the fact that the Pure
Theory itself divided into two schools, that of Vienna and that of Brno. It was in
the Brno school of Frantisek Weyr that Weinberger's legal theory found its early
formation, and perhaps from that early influence one can trace his continuing
insistence on the dual character of legal norms -both as genuinely normative and
yet at the same time having real social existence. Here, the Brno approach to
legal theory has in its content an interesting affinity with British work in the
Hartian style, although each appears to have developed quite independently of
the other; the former, certainly, had temporal priority, but was of relatively little
general influence owing to the relative isolation of Czechoslovak scholarship
through the War years and under various periods of repressive communist rule
thereafter.
Ota Weinberger has had great scholarly achievement through many
works published variously in Czech and in German. His achievement is the
more remarkable for the adversities he has suffered, as a survivor both of the
nazi concentration camps (he is of Jewish family origin) and of the years of
stalinism and repression in Czechoslovakia, which he left at the time of the
crushing of the 'Prague Spring'. The circumstances of his life are no doubt
partly responsible for the focussing of his earlier publications very considerably
on logical studies, with special reference to the problems of norm-logic; in such
fields one effectively eludes the censor's interference, since after all there is a
limit to the intelligence and understanding of censors. However that may be, the
very substantial contribution of Weinberger to the development of norm-logic
and deontic logic is undeniable and a contribution which one can welcome as
heartily as one deplores the possible underlying causes of his delayed opportu
nity to contribute also at the level of substantive value theory and studies in the
normative politics of law.
That logical studies can have profound significance for legal theory is in
any event a point which his work (together with that of others) has put well be
yond doubt. In the present volume, chapter III deals with this issue. The setting
is in Weinberger's theory of action, also discussed in chapter ll. Action is here
represented as behaviour guided by thinking, while thinking itself is dermed as a
processing of information. Fundamental to practical (action-guiding) thought are
goals and values, and therefore fundamental to the analysis of practical thought
ix
x FOREWORD
must be some sort of fonnalisation of teleological reasoning. One of the author's
most significant contributions has been his attempt to develop a 'fonnal
teleology' (the special subject-matter of the present chapter II); this is distinct
from deontic logic, which fonnalises the treatment of nonns as possible action
guiding thought contents. It is here that their character as practical and normative
is identifiable (see chapter III).
The other main point of Weinberger's 'institutional legal positivism' (a
point which we fully share, as our Institutional Theory of Law makes clear) is
that nonns also have a real existence as 'thought objects', belonging among the
'institutional facts' of our social existence. The stress upon the institutional
character of legal nonns marks his own highly original development of the gen
eral themes inherited from Weyr and other teachers and colleagues. His account
of the basic elements of this institutional approach is the opening chapter of the
present book, where the thesis is advanced that a legal system is both a system
of norms and a part of social reality. This may seem to involve a confusion of
'ought' and 'is'; for how can one assert the being-in-existence of a legal 'ought'
without illegitimately leaping the is/ought gap? The answer offered avoids some
of the notorious difficulties into which Kelsen found himself driven farther and
farther; it achieves this by insisting on the necessity to pursue our understanding
ofnonnativity through action-theory, while also keeping in view the functional
links between nonnative judgement and actual social processes.
These are the themes of Part A of the book, dealing with theoretical foun
dations. If the theoretical position is well grounded, one thing which has to
follow from it is that there can after all be greater common ground between legal
theory and the sociology of law than is sometimes supposed either by legal
theorists or by sociologists. Part II pursues this thought by offering a series of
studies in legal theory and the (theoretical) sociology of law. Here, chapter IV
explores the ontological insights of institutional theory, reflecting from an 'inter
nal point of view', or at least in the perspective of a henneneutic understanding,
on the idea of the 'binding quality' or 'validity' of legal nonns which are in force
somewhere. Chapter VI applies the fonnal-teleological account of action to some
problems in criminal law . Chapter VII examines and defends the sense of 'legal
positivism' upheld by the Weinberger version of the 'Institutional Theory'. Here
I have to confess that my own recent work may have somewhat distanced the
MacConnick version of the theory from the arguably more robust rejection of
cognitivism on which my colleague builds. However that may be, it remains for
both of us fundamental that our approach to the theory of institutions and of law
is a nonnativist one. The contrast between this and certain sociological ap
proaches is made plain by the critique of Helmut Schelsky's sociological theory
in chapter VIII - not that our theory is anti-sociological; on the contrary, we
think that a sociological approach to law has also to be nonnativist in the relevant
sense.
Weinberger's disbelief in an objective realm of values directly discovera
ble by some fonn of cognition (his noncognitivism) does not for him entail any
kind of ethical or political irrationalism or even nonrationalism. Far from it -he
considers the rational analysis of problems in legal politics quite possible; and