Legal Knowledge and Analogy: Fragments of Legal Epistemology, Hermeneutics and Linguistics

249 Pages·1991·4.983 MB·English

by  Patrick Nerhot (auth.), Patrick Nerhot (eds.)

LEGAL KNOWLEDGE AND ANALOGY
Law and Philosophy Library
VOLUME 13
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 Offentliches Recht und Rechtsphilosophie,
Christian Albrechts-Universitiit, Kiel
GEORGE P. FLETCHER, School of Law, Columbia University
ERNESTO GARZON VALDES, Institutfur Politikwissenschajt,
Johannes Gutenberg Universitiit Mainz
JOHN KLEINIG, Department of Law, Police Science and Criminal
Justice Administration, John Jay College of Criminal Justice,
City University o/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, Corvus Christi College, Cambridge University
ROBERT S. SUMMERS, School of Law, Cornell University
ALICE ERH-SOON TA Y , Faculty ofL aw, University of Sydney
ERNEST 1. WEINRIB, Faculty 0/ Law, University of Toronto
CARL WELLMAN, Department o/Philosophy, Washington University
The titles published in this series are listed at the end of this volume.
LEGAL KNOWLEDGE
ANDANALOGY
Fragments of Legal Epistemology,
He rmeneutics and Linguistics
edited by
Patrick Nerhot
European University Institute,
Florence
SPRINGER SCIENCE+BUSINESS MEDIA, B.V.
Library of Congress Cataloging-in-Publication Data
Legal ~nollledge Ind analogy fraglenu of legiI eplsulology,
herlileneutlcs, and ltngututcs I Pltr!c~ Nerhot (ed.l.
p. CI. -- (LiN & phllosophy 11brary : v. 13)
Includes btbllographlcal references Ind lndu.
ISBN 978-94-010-5438-6 ISBN 978-94-011-3260-2 (eBook)
DOI 10.1007/978-94-011-3260-2
1. Lall--Interpretnlon and constructlon. 2. Law--Language.
3. ,Jurlsprudence. 1. Nerhot. Patrlck, 1953- II. Serles, La.
Ind phl1osophy llbrary ; v. 13.
K296.L44 1991
340·.01~--dC20 90-22507
ISBN 978-94-010-5438-6
Printed on acid-free paper
AII Righls Reserved
C 1991 Springer Science+Business Media Dordrecht
OriginaJly published by Kluwer Academic Publishers in 1991
Soflco\'cr rcprint ofthc hardcovcr Ist cdition 1991
No part of the matenal protected by this copyright notice may be reproduced or
utilized in any fonn or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
TABLE OF CONTENTS
PATRICK NERHUf
Introduction.................... ...... ..... .......... ... .............................. ... 1
KARL-HEINZ LADEUR
The Analogy between Logic and Dialogic of Law........................... 12
GIUSEPPE ZACCARIA
Analogy as Legal Reasoning - The Hermeneutic Foundation
of the Analogical Procedure...................................................... 42
CEES W. MARIS
Milking the Meter - On Analogy. Universalizability
and World Views ..... ........ ............... ............... .......................... 71
JACQUES LENOBLE
The Function of Analogy in Law: Return to Kant
and Wittgenstein...................................................................... 107
BERNARD S. JACKSON
Analogy in Legal Science: Some Comparative
Observations........................................................................... 145
vmoRIO Vll..lA
Legal Analogy between Interpretive Arguments
and Productive Arguments......................................................... 165
PATRICKNERHar
Legal Knowledge and Meaning
(The Example of Legal Analogy)................................................ 183
ZENON BANKOWSKI
Analogical Reasoning and Legal Institutions................................. 198
JAN M. BROEKMAN
Analogy in the Law ................................................................. 217
PATRICK NERHOf
IN'IRODUCI'ION
Reasoning by analogy, or the type of reasoning traditionally presented as
the one in which one moves from one object to another on the idea that
there is "something in common" between them, remains a fairly mysterious
type of reasoning. The two definitions we shall offer, from Cornu and
Geny, two famous French lawyersl, will not really eliminate this sense of
mysteriousness.
The former defines analogy as "the resemblance or conformity of several
things among themselves", which may appear to be a minimalist approach,
and considers reason by analogy as "a classic process of rational interpreta
tion forming part of the exegetic method"2. The latter, traditionally pre
sented as the decisive opponent of the French exegetic school, nevertheless
locates the procedure of analogy at the very heart of what must according to
it be a true science of law3• There is therefore a sense of mystery about a
process of reasoning that is nevertheless common, since we very frequently
establish a "resemblance" between two different objects and use the more
1 It should be easy to find equivalent definitions in other national legal cultures.
2 G. Cornu, Vocabulaire juridique, Association H. Capitant, P. U. F. , 1987, "Analogie".
3 F. Geny, Sciences et Technique en droit priYi positif, 1922, I; esp. p. 158ff.
2 PATRICK NERHaf
accessible of the two to make the other one more comprehensible. There is
no need for surprise, then, if this concept has had a "wretched" reputation4
and has been regarded as a "vague, soft, polymorphous, treacherous" con
ceptS; Bachelard and Canguilhem have shown how analogy could in certain
cases become an "epistemological obstacle". Conversely, the "analogical
imagination", as Bachelard said, could playa constitutive role for a
determinate science by helping to split up the area of investigation and
suggest images that could each become concepts6• Analogy, accordingly,
very clearly goes beyond the play of mere metaphors, and can act as an in
termediary between already constituted disciplines and a newly constructed
reality7.
But what does it amount to in legal science?
The whole set of texts we are offering has, it seems to me, the considerable
interest of fairly substantially covering the major questions that analogical
reasoning poses for us. We have thus a diversity of proposed approaches,
though all with a common referent, the clearest expression of our modern
legal culture (19th and 20th centuries), namely that of law conceived of as a
full discourse: Not that our authors, any more than myself, put the question
4 Recherches interdisciplinaires du College de France, Vol. I, Aspects historiques
"Analogie et Connaissance" sous la direction de A. Lichnerowicz, F. PerroUlt, G. Cadoffre,
Introduction p. 5.
5 Ibid.
6 E. g. C. Menard, "L'analogie de l'equilibre economique exclut-elle l'histoire?", in
Analogie et Connaissance, Recherches Interdisciplinaires du College de France, op. cit.,
p.208.
7 Thus Kepler, cited by D. Walker, in "Kepler's musical theories and analogy" in
Analogie et Connaissance, op. cit., p. 65ff., who shows belief in an analogical structure
of the universe and of history: "the movements of the heavens are nothing other than a
perpetual symphony (rational, not vocal) which moves, through dissonances, through as
it were certain suspensions or cadential formulae (through which men imitate the natural
dissonances) towards definite, prescribed cadences, each chord being made up of six terms
(as it were six voices), and by these marks (cadences) it divides and distinguishes the im
mensity of time; so· that it is no longer astonishing that Man. the ape of his Creator,
should finally have invented this way of singing in several parts, unknown to the An
cients ......
INTRODUCTION 3
of law as an object that has always already been there, systematic and com
plete. Quite the contrary. Some, indeed practically all of us, reject this sort
of epistemology of law, and where the hypothesis of the coherence of the
legal universe is put forward, this is in order to define it in very noticeably
different terms from those traditionally used in legal scholarly accounts.
If this referent, the law presented as a full discourses, runs through all of
the contributions, this is because reasoning by analogy has to be found its
specific place within this legal culture. It is the place to locate the problem
of "lacunae" in law, which at bottom allows our various contributions to be
classified. With Zaccaria and Maris, the question of lacunae is accepted as
such (this is, we might say, the "traditionalist" aspect of these two articles,
which is counterbalanced by - keeping to the same terminology -
"modernist" emphases, sometimes Dworkinian in nature), and becomes the
backdrop for considerations of purely hermeneutic type, in Zaccaria, ex
tended in Maris to the field of ethics. The papers from Lenoble and Jackson,
the former philosophical and the latter semiological, take as their main tar
get this legal knowledge where the theory of lacunae finds its place. Then
come legal epistemological contributions from Villa and Nerhot, the ques
tion of the whys and hows of such a theory being taken as the object of
consideration; and Dean Broekman then invites us, as it were, to change
universes radically, to ask ourselves about this mysterious operation, which
traditional legal methodology dodges, known as "legal qualification".
Among these various positions, then, we select our order of presentation
of the various authors, with the honour of kicking off going undisputedly
to Ladeur. He offers us in particular a historical survey of the use of reason
ing from analogy in German legal culture, accompanied by a brief quantita
tive overview; this history fits in perfectly, in our view, with the special
features of our European legal culture over these last two centuries.
8 A totality which has in the course of the last two centuries in Europe taken on various
fonns, since, very schematically, in an initial period (say the last two·thirds of the 19th
century) we perceive it as the completeness and systematic nature of law, while in a second
period (late 19th century, first four decades of this century more or less, with some diver
gence from one country to another) it appears as law's vocation towards completeness and
system, and finally comes to be conceived of as coherence (perhaps for the first time in
Betti, ureoria Generale della Interpretazione", A. Giuffre, Milan, 1955), law's systematic
nature.
4 PATRICK Nl!RHOT
While, for instance, the Volksgeist expressed the unity of law while
analogy brought about the continuity of identity of the overall legal sys
tem, let us not forget that during the same period the so-called exegetic
method was also expressing this unity of law, and Comu9, moreover, today
sees reasoning from analogy as "a classic process of rational interpretation
forming part of the exegetic method". This comparative type of treatment I
permit myself is not entirely innocent, since it seeks to show that two the
ories always regarded as very different nevertheless come together to express
something identical, and quite fundamental. I am thus inviting the reader,
and we shall return to this point later, to seek to understand these theories,
Volksgeist and exegesis, not as something to be regarded as the completed
expression of some fundamental legal knowledge, but on the contrary as
secondary, derived creations, more or less a trace of something more gener
al, more systematic, more profound: "an order of knowledge" (using a
phrase from M. Foucault, who saw what we know chronologically as the
19th century·as an epistemological break, a new way of stating and know
ing things).
We do not intend within the limits of this introduction to develop this
hypothesis, but let us stress in this perspective that in the mid-19th centu
ry, more or less, Linnaeus's seemingly impossible enterprise was apparent
ly accomplished. The botanist, by looking at a leaf or a fruit, can manage
to induce the whole of the tree or plant. In a very interesting work, F. Da
gognetlO if even tells us that "with a few petals, Linnaeus unfolded the
whole universe, since goo-botany had taught him that the plant implies a
soil, a climate, an environment, a region". Cuvier too could describe the
whole of an animal from a tooth or a bone. The science of nature ceased to
be descriptive and came to constitute "a tight network through which it in
formed the living". The scientific spirit of the age, this profound break with
the epistemology of the classical age, lay in this articulation of knowledge
enabling scientific prediction of the future, describing "this world below"
even if not yet visible, inductively filling every type of vacuum. Our idea is
that we must seek to understand legal science of the time on the basis of
9 Cornu, p. 1 above.
10 F. Dagognet, Le cataLoglUl de La vie, Presses Universitaires de France, 1970, p. 176.
INIRODUcnoN 5
this episteme. Totality, unity (and thereupon systematicity or complete
ness) certainty, prediction, were the categories on the basis of which this
order of knowledge recognized itself. At bottom, what the rapid but instruc
tive positive legal history of analogical reasoning presented by Ladeur in
vites us to do is, then, to follow these constant shifts in the order of
knowledge on the basis of the traces which are the various succeeding doc
trines in legal dogmatics up to the present. Begriffsjurisprudenz (particularly
through Laband) conceived of analogy within a philosophy where legal in
stitutions were compared to, treated in the same way as, natural laws
(Ladeur)ll. It was with the Weimar Republic that "the link between deduc
tivism and the continuity of experience is broken" (Ladeur), and we then
find Kelsen coming along to express the idea of incompleteness of the legal
system. Here too, the argument is not typically German; it can be found
particularly in France, despite the force of the civil-law tradition, in Italy
etc., and once again what this should show us is what it more substantially
reflected, this knowledge on the basis of which we recognize things.
The argument becomes increasingly broad: "the assumption of the logi
cal-syntactical· order of the legal system and the comprehension of legal
practice as deductive rule-application and, ultimately, the presupposition of
a system of legal rules which is not itself transformed by its own applica
tion are given up" (Ladeur). However, despite acceptance of this "openness",
using an item from today's terminology, of the process of self-transforma
tion of legal know ledge that leads the idea of unity of the legal system
astray, it seems to us that Ladeur is right to stress that the principle of
unity as such should not yet be abandoned on that ground12. Having made
these three general methodological remarks. and roughly brushed over the
main features of our cultural legal context, we may now present our various
authors, with the questions they raise.
11 Recall that Geny located the Begriff at the very heart of this "scientific search" for
law, where the construct (i.e. legal institutions) expressed the datum (i.e. natural laws).
12 In this connection, it would be fairly easy to show the broad lines of continuity be
tween Kelsen and Luhmann, specifically on the basis of this idea of self- creation of norms
conceived conjointly with the principle of unity. On this question of autopoeisis, see in
particular some conclusions of Ladeur himself, and the work of I. Broekman.