Institutional Aspects Of Law*
| Date | 01 November 1979 |
| Published date | 01 November 1979 |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01559.x |
| Author | Christopher Arnold |
INSTITUTIONAL
ASPECTS
OF
LAW
*
I
IT
is standard to think of the principles of logic as governing
generally the formal structure of sentences and as testing the sound-
ness
of
inferences derived from sentences. Seen in this way, logic is
a limited enterprise, just like translation, and the progress
we
make
with it
is
limited also.
For
example,
we
do not, in constructing a
modal logic
of
knowledge, challenge scepticism or meet the doubt
whether we really can know anything-we simply record formal
inferences from our use
of
“know.”
So
logic does not challenge
underlying assumptions and deeper beliefs in the way that other
studies may.
Within
a
logic itself, howevcr, structure and inferences may be
affected by the presence of vagueness in certain words.
In
such cases
where the usual application of a word is a matter
of
degree and not
precise, the use
of
some logical principles such as bivalence will be
blocked.
Our concept of law seems on the face of it precise, but precision
marks only one aspect of the concept. The aspect of authority is
precise, whereas the aspects of general regulation are vague. There is
here a contrast between the surface precision
of
law in the presence
of
legal sources and a deeper vagueness in the boundaries between
law and other forms of social regulation. That deeper vagueness may
challenge the surface precision.
In its
logic
law is not a matter of degree.’ Any given statement
or
rule
or
principle either is
or
is not a statement of law,
a
rule
of
law
or
a principle of law. There is no room for the idea that
a
rule
or
any of the other standards might be “more
or
less”
law. That
precision, with which any term must be endowed for the principle
of bivalence
to
work, comes in this case from the criteria or authority
which must exist
if
we are to mark
off
certain kinds
of
statement,
rule and principle, as legal.
A
neat way
of
showing this is through
concepts
of
adjudication and legal action.
We might start by raising the question
of
what is involved,
generally, in the idea
of
taking
legal
action as opposed to any other
kind of action
to
settle a matter. In answer we may refer, again
*
This paper was first presented at the Easter Conference
of
the Australian
Society
of
Legal Philosophy in Sydney on April
2,
1977.
1
I
borrow the contrast between
natwe
and
logic
from
D.
Pnrfitt’s
Personal
Identity
where that distinction is applied
to
statements about the identity
of
persons.
It
is
reprinted in
Philosophy
and
Personal Relations
(1973) edited by
A.
Montefiore.
I
am indebted
to
this article.
Cj.
also
M.
Cohen on
L.
Fuller’s
The
Morality
of
Low
:
“
He
decries the modern
heresy
of
thinking ‘that tho legal system either
is
there
or
not there.’
To
Fuller it
is
a
matter
of
degree,” in Symposium on
Fuller’s
The
Morality
of
Lmv
in
(1966)
10
Vlllanova Law
Review
at
p.
650.
667
668
THE MODERN LAW REVIEW
[Vol.
42
generally,
to
judicial adjudication as
a
characteristically legal method
of
settling, once and
for
all, the entitlements and liabilities
a
of
people. Adjudication requires standards
of
certain kinds. The judicial
process
is
not a random process; at some point we need to refer to
acceptable public standards-acceptable in terms of their sources
or
formal ancestry-as crucial steps in the arguments by which liabilities
and entitlements are eventually fixed. Argument from authority, in
this sense, is
a
hallmark of law and distinguishes
a
legal system
from a wholly discretionary system
or
from
a
system in which the
governing rule is that might is always right. The standards-public
rules, principles and statements-by which judges reason to
fix
entitlements and liabilities must have
a
certain formal ancestry. At
root therefore
a
mark of law is the presence
of
authoritative
rite ria.^
They. rather than the content
or
values embodied in any rule, allow
us
to
say whether any given rule
is
or
is not Law. When it
is
said
therefore that law is not
a
matter of degree, that means that any
given rule
or
principle
or
statement either has
or
does not have legal
authority. Consider this analogy. Any given piece
of
porcelain either
is or is not Meissen. There is no room for
a
piece’s being more
or
less
Meissen. The reason for this is that if any piece is Meissen it
must satisfy certain conditions such as being made between certain
datcs, under the direction of certain craftsmen and at certain factories.
There is no indeterminate area between Meissen and Chelsea; any
given piece
of
porcelain is either Meissen
or
not, because it either
satisfies the conditions for being Meissen
or
it does not. Likewise
any given rule either does satisfy the tests of proper formal ancestry
or
it does not. There is no half-way house of being more
or
less law.
In
its
nature
Law is a matter of degree. There is a certain vague-
ness in the levels of legalisation within a legal order, which means
there may be no easy way to separate highly legalised processes
from others. There are degrees of legalisation. This is reflected in
the way we distinguish primitive from mature systems and in the
contrasts we draw between the highly legalised and the rudimentary.
But no sharp line divides these descriptions-it is a matter of degree
and
a
reflection of the vagueness
of
expressions like legal
or
legalised.
These comments about vagueness are made within the setting
of
a
legal system. It may however be an open question whether there is
a
legal system in existence at all. Law may then be
a
matter of
--
-
2
For
a
brief introduction to this way
of
thinking about law, see
a.
Calabrcsi
and
A.
D. Mclamed,
“
Property Rules, Liability Rules, and Inalienability
:
One
view
of
The Cathedral”
in
(1972)
Harvard
Lniv
Revfew
at pp. 1089-1092.
Cf.
also
Sir Owen Dixon’s address “Jesting Pilate
”
reprinted
in
Jesffng
Pilafe
nnd Ofher Essays and Addresses
(1965) (cd. Judge Woinarski) at p.
3.
“The
procedures and procticcs
of
the courts are directed
to
the elucidation in detail
of
complex situations in which the rights
or
liabilities
of
the litigants have their
source.”
3
See Snlmond’s
Jurisprudence
(1901)-Cap.
V,
Sources
of
Law and
R.
Woll-
heim,
“
The Nature
of
Law
”
in (1954)
2
Polifical
Slrrdfes.
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