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Law as an Objective Political Concept

Published online by Cambridge University Press:  02 September 2013

G. Lowell Field
G. Lowell Field
Affiliation:
Wayne University
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Extract

The Need for Factually Defined Concepts. Most political utterance is necessarily normative in import since it occurs in the process of motivating human behavior. Popularly employed political concepts, appropriately, are frequently of the ideal type in that they tend to denote an hypothetical situation toward conformance with which actual human institutions are being impelled. Ask any student to define a state or a government and he is almost certain to bring in some such notion as “operation in the public interest,” which might or might not be judged applicable to an actual situation. It is safe to say that ninety per cent of the time such concepts as state, government, court, law, administration, political party, and many others are used in this normative sense, not only popularly but in learned circles.

Without desiring the exclusion of the normative from the social sciences, the writer believes that rigid conceptual clarity in distinguishing norm and fact is necessary for the progress of these disciplines. To attain this goal, the technical requisite is a system of concepts having an understood reference of a purely factual character. The absence of such factually defined concepts is noteworthy in political science, and largely unrecognized. Although most of our studies are factual in nature and the intended reference of concepts is usually factual, definition is largely subconscious and when brought to the surface is likely to have normative form, particularly a form borrowed from legal norms.

True definition is appropriate in such disciplines as logic and mathematics and in physics, which has attained since the seventeenth century to the explanation of phenomena by hypothetical systems employing purely postulated entities like electrons and atoms. A set of pure definitions gives postulates from which theorems are derived by rigid deduction. What is put into the definitions comes out in the theorems.

Type
Research Article
Information
American Political Science Review , Volume 43 , Issue 2 , April 1949 , pp. 229 - 249
Copyright
Copyright © American Political Science Association 1949

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References

1 Warren, Robert Penn, All the King's Men (New York: Harcourt, Brace and Co., 1946), p. 145Google Scholar.

2 “Toward a More Objective Definition of Political Concepts,” Southwestern Social Science Review, Vol. 27 (1946), pp. 7–25Google Scholar.

3 Lochner v. New York, 198 U. S. 45, 76.

4 Frank, Jerome, Law and the Modern Mind (New York, 1936)Google Scholar.

5 “This stock of rules and principles is what for most purposes we mean by law.” Cardozo, Benjamin W., The Orowthrof the Law (New Haven, 1944), p. 43Google Scholar.

6 Holmes, Oliver Wendell, The Common Law (Boston, 1881), p. 219Google Scholar.

7 See Ebenstein, William, The Pure Theory of Law (Madison, Wis., 1945), pp. 127–128Google Scholar, and Hans Kelsen, , General Theory of Law and the State (Cambridge, Mass., 1946), pp. 123–124, 153–162, especially p. 159Google Scholar.

8 See Olivecrona, Karl, “Law as Fact,” in Interpretations of Modern Legal Philosophies; Essays in Honor of Roscoe Pound (New York: Oxford University Press, 1947), especially pp. 545–546Google Scholar.

9 Holmes, op. cit., p. 234. Italics added.

10 See Julius Stone, “Fallacies of the Logical Form in English Law,” pp. 696–735, in Interpretations of Modern Legal Philosophies, cited.

11 See Green, Leon, “Illinois Negligence Law, I,” Illinois Law Review, Vol. 39, p. 36Google Scholar.

12 Holmes, op. cit., p. 1.

13 “When there is such a degree of probability as to lead to a reasonable assurance that a given conclusion ought to be and will be embodied in a judgment, we speak of the conclusion as law, though the judgment has not yet been rendered, and though conceivably, when rendered, it may disappoint our expectations.” Cardozo, op. cit., p. 33.

14 Except possibly in the exceptional situation selected by Frank, i.e., when the layman “consults his lawyer.” Op. cit., p. 42.

15 The opposite solution has little phenomenological plausibility. We do sometimes deny the jurisdiction of an organ on the basis of our own view of delegatory norms in the teeth of the organ's own finding of jurisdiction. This is a common mentality of rebellion, which frequently sees itself as mere resistance to usurpation. Witness the American Revolution and the position of the Southern states in the Civil War. Rarely do we deny authority to a particular decision of an organ of uncontested jurisdiction on the basis of our own view that contentual norms have been misapplied.

16 Op. cit., p. 277.

17 Kelsen, op. cit., pp. 150–151.

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