Ota Weinberger

The expressive conception of norms — an impasse for the logic of norms

The recent development of the ontology of norms has taken a surprising turn. Some writers in deontic logic (or perhaps more appropriately, in the logic of norms) and in the philosophy of law have adopted a conception of norms which stresses a close connection between norms and acts of commanding, and which either abolishes any possibility of developing a logic of norms or leads to a transfer of logical relations and inference operations from the field of norms into the field of descriptive norm-contents, all of which looks rather similar to a proposal made by J5rgen J6rgensen in the thirties.1

Prima Facie Ought. A Logical and Methodological Enquiry

The pressing problem of prima facie validity must be treated on the basis of a differentiation of types of normative rules. Rules stating principles or purposes are always applied as views determining the decision by weighing (but not by subsumption) so that the problem of prima facie validity does not arise. Neither is there a problem of such a restricted form of validity concerning power-conferring rules. The author shows that prima facie validity of rules of behaviour must not be treated as a different kind of validity and that the notion of prima facie validity can be explained in a logically satisfactory way on the basis of traditional norm-logical considerations.

The Conditio Humana and the Ideal of Justice

Who would not stand up for justice? Who does not feel affected by problems of justice? Political systems, religions, the sciences, — and, above all, ethics, jurisprudence and political theory -, they all deal with questions of justice and want to establish a just world in accordance with their precepts. The journalist und the man in the pub alike discuss what is just or fair. Who does not ever ask questions about what is a fair wage, what are fair prices, what makes a fair partnership? We look for just institutions and for justice or fairness in all human relations. In short: Justice is a ubiquitous problem.

Towards a Formal-Teleological Theory of Action

Theories can be regarded as instruments which allow us to master certain challenges. They arise when we are at a loss how to proceed in a given field of knowledge, action or thought, or if we do not understand things and their interconnections fully. We are looking for guidelines for action. We have not a clear insight into the field in which we are acting. At an advanced stage in our reflections we can at best pinpoint the problem or even define it.

A Philosophical Approach to Norm Logic

The author outlines his views on the essence of philosophical logic. There are two means of philosophical argumentation: intuition and analysis of the problem situation under examination. Logical intuition can be replaced by improved intuition based on new intellectual constructions. Then the author explains—in opposition to von Wright—the main philosophical traits of his conception of norm logic. The structure of the information processing determining action justifies the application of dichotomous semantics in action theory and in practical philosophy. The theory of action and institutions is based on three anthropological features of man: our capacity of acting, our being a zoon politikon, and our capacity to form institutions. These features determine our ontology, our semantics and the logics of practical thinking. The action-theoretical approach leads to a formal and finalistic theory of action in which action is not only analysed as an element of the norm content, but as the essential basis of the whole field of practical philosophy. In the frame of this action theory a conception of freedom of will is provided which does not contrast with determinism. The formalism of action is applied in two different problem situations: in action deliberation and in motive interpretation. Jorgensens dilemma is discussed and overcome by the introduction of a generalised notion of inference. Deontic logic is confronted with the idea of a genuine logic of norms. The main principles of norm logic are discussed and a normative conditional is introduced. Von Wrights conception of a genuine norm logic is confronted with the present authors conception. The author shows that norm-logical skepticism would be detrimental to analytical jurisprudence.

The Significance of Logic for Modern Legal Theory Fundamental Problems of Institutionalist Normativism

Two features characterise modern legal theory, and both are related to the problem of applying logic to law: (a) the structure theory of law since Bentham, Austin, Kelsen, Weyr, Merkl and Hart this theory is considered central to legal theory;1 (b) the theory of rational legal argumentation. 2

Constitutional Theory in the Light of the New Institutionalism

The new institutionalism is not a descendent of the classical legal doctrine of the institutions; nor is it a revised version of Maurice Hauriou’s or Carl Schmitt’s theories. It has evolved independently from those theories and it expresses a largely different conception of social norms, of the law and of the institutions.

The Formal-Teleological Theory of Action and Criminal Law

The elucidation of the concept of action is one of the most important of the fundamental problems facing jurisprudence. In the wake of Welzel’s teleological theory of action with its philosophical and dogmatic implications this concept became a key topic of debate in the context of criminological theory.1

Elements of Institutional Legal Positivism

Ontology is usually regarded as a philosophical discipline with the task of representing the major categories of being. The modes of existence as well as the fundamental relations between different categories of objects. In principle it is conceived of as an identifying discipline with the task of characterizing what exists in itself. Nicolai Hartmann, for instance, takes this view ascribing to ontology the tasks of acquiring knowledge of being as being, of defining the different modes of being and of revealing their relations.1 In this way it is possible to achieve the kind of categorisation of observable objects expressed in Hartmann’s layer-ontology (or, in complete analogy, in Popper’s Three Worlds Theory2). In contrast to these identifying object-metaphysics and to the categorisation of objects I should like to advance a different conception of ontology which emphasises the stipulating character of ontology. The ontological principles and categories are entities which determine the fundamental framework of our world view or of certain disciplines by stipulation. In the spirit of criticism this conception of ontology is based on the view that our cognition and cogitation take place necessarily within a framework of fundamental structures and that the experiential material is shaped, processed and categorized in accordance with this system of fundamental structures. Kant’s tenets accepted these forms as necessarily a priori; by contrast, the — as one might say — neocritical conception postulates the possibility of establishing a variety of frameworks of our thinking and understanding.3

Ontology, Hermeneutics and the Concept of Valid Law

Only valid law is law; invalid law is not law. To assert that a particular norm N is valid law simply amounts to saying that N is a constituent part of the legal system under consideration. To speak of an invalid legal norm is like speaking of an ‘invalid conclusion’, of ‘a sentence not well-formed’ or of an ‘invalid act in law’. An invalid inference is not an inference at all, because in this case the conclusion does not follow from the premises. A sentence that is not well-formed is precisely not a sentence in the language concerned, which is defined by its rules of formation. A legally invalid act of a particular type is, legally speaking, not an act of this type. The meaning of such expressions has to be explained by deep grammar analysis. It is always the question whether an entity which has been tentatively assumed actually is an entity of this type; in the cases cited above the answer is ‘no’. It would be philosophically highly suspect to regard ‘invalid law’, ‘not well-formed sequences of signs’, ‘invalid conclusions’, ‘invalid acts in law’ etc. as special entities, so-called negative objects. In fact no new (as it were negative) object is established by banishing an object from the realm under consideration.1