Pure Theory of Law and Logical Jurisprudence

--Focusing on “Basic Norm”--

2002/12/16 at MGUWorkshop on Kelsen’s Basic Norm

Hajime YoshinoMeiji Gakuin University, Tokyo

mailto:yoshino@law.meijigakuin.ac.jphttp://www.meijigakuin.ac.jp/~yoshino

Contents

• 1 Introduction• 2 What is Logical Jurisprudence (LJ)• 3 Theory of Legal Sentence• 4 Comparison of the starting points of LJ with

Pure Theory of Law (PL)• 5 On Theory of Legal System (related to ‘Basic

Norm’)• 6 Demonstration of the availability of LJ on

Systematization of CISG• ７ Conclusion

1 Introduction• Hans Kelsen’s final purpose in his “Pure Theory of Law (PL)” i

s to establish a scientific of law.• This enterprise has --perhaps more-- importance in the prese

nt world. We should receive his torch and carry it further. He might, however, have some limitations.

• If so, we should overcome them and develop a new, true scientific of law.

• I have attempt to make such a scientific theory of law since 1985. That is “Logical Jurisprudence (LJ)”.

• In this paper, I would like at first to explain what LJ is.• Then, I will compare the starting points of LJ with those of PL. • On these basis, I would like to clarify what are to be “basic no

rms” from view point of LJ comparing with my concept with Hans Kelsen’s.

• I will demonstrate the “basic norms” in the legal system of CISG (United Nations convention on contracts for the international sale of goods).

• I conclude this paper suggesting our further discussions.

2. What Is Logical Jurisprudence 　 (LJ)

Logishe Rechtslehre in German• A developed form of “legal logic” (Juristische Log

ik)• It is not merely an application of logic to law but

also a scientific theory of law to establish the true science of law.

• Logical Jurisprudence has been developed through the construction of LES-5, a legal reasoning system in the field of CISG (United Nations convention on contracts for the international sale of goods).

• Naming LJ is done by Hajime Yoshino.

Primitives of LJ

• LJ try to explain the whole legal system using minimum elements.

• LJ starts form three primitives:• (1) “sentence,”

– LJ consider that norm as a meaning does not exist.– LJ starts from sentences.

• (2) “validity” of sentence– legal validity as legal truth– “is_valid(sentence1, goal1,time1)”

• (3) “inference rule.”– Modus Ponens: （（ A ⇒ Ｂ）＆Ａ） ⇒Ｂ

3 Theory of Legal Sentence in LJ

• LJ starts from legal sentences.• What kind of legal sentences are there?• A legal system is to be analyzed and constructed in

terms of three types of alternative fundamental concepts of legal sentence:

• 1) (Legal) rule sentence and (Legal) fact sentence• 2) object sentence and meta sentence• 3) element sentence and complex sentence• Existence of an obligation and the validity of the

legal object sentence (Fig.2)

Legal rule and fact sentences

• Legal rule sentences: – “∀X{a(X) ← b(X)}”. – legal consequence ←legal requirement– “∀X{become_effective(offer(X,A),T) ← reach(off

er(X,A),offeree(B,X),T)}”• Legal fact sentences:

– “b(x1)”.– reach(offer(o1,anzai),offeree(bernard,o1),4_0

5).

Legal elementary and complex sentences

• Elementary legal sentence – the smallest unit of legal sentences. – “One must drive a car under 100 km /hour on a

highway”

• Complex legal sentence– A group of legal sentences, which has an unique

name– “The United Nations Convention on Contracts of the

International Sale of Goods” – a code, parts or sections or an article of the statute– The concept of a complex legal sentence enables us

to treat the validity of legal sentence at once.

Legal object and meta sentences

• A legal object sentence describes an object.– The object in law is the obligation of a person

– “B must pay A the price of $10000” • A legal meta sentence describes about a

legal sentence – It describes the validity of a legal sentence.– “”B must pay A the price of $10000” is valid”.– “(1) This Convention applies to contracts of sale

of goods between parties whose places of business are in different States : (a) when the States are Contracting States; or … ”

4 Comparison of the starting points of LJ with Pure Theory of Law (PL)

• PL• Norm as a Meaning• Legal Norm[1]

• Fact as an entity• Norm as special meaning• Imputation (Zurechnung)• Legal Positivism• Primary Norm and Secondary

Norm• Basis of Validity: Issued on the

basis of Upper Norm • Theory of Hierarchical Structur

e of Law• Basic Norm

• LJ• Sentence as a sign• Law Sentence• Fact as a form of sentences• Rule as a form of sentences• Material Implication• Scientific Positivism• Object sentence and meta

sentence• Basis of Validity: Logical Proof

through Legal Meta Inference• Theory of Legal Meta Rules

and meta inference• ????

5 Theory of Legal System in LJ• The law requires a legal system as a deductive system so

that a judgment is justified from the legal system together with the relevant facts of a event.

• How legal order is to be systematized as a deductive system, that has been a target of legal philosophical studies.

• LJ analyze and construct a legal system in terms of above three primitives including three types of alternative legal sentence.

• LJ succeeded in demonstrating the legal system as a deductive system on those basis.

• Thereby, the concept of validity of legal sentences and legal meta inference play a important role.

• The final target of legal reasoning is to prove the validity of object sentences, to identify what kind of sentences describing obligation are valid.

• On the way, sentences expressing various legal state of affairs are to be proved valid as well.

5.1 Legal meta inference

• Legal sentence, which is applied to solve a problem, is to be valid. In other words:

• Only valid legal sentence can be applied as the premises of the legal inference.

• The inference, which decide whether the legal sentence applied is valid, is called legal meta inference.

• In the legal meta inference, legal meta rule sentences are applied.

5.2 The validity relationship between legal sentences

• The validity of a legal object sentence is based on the description of the validity in the legal meta sentence.

• The validity of this legal meta sentences is prescribed by other legal meta sentences.

• A legal meta sentence that prescribes the validity of a legal meta sentence can be called a higher or upper level legal meta sentence.

• The highest, final level of legal meta sentence can be called a “basic” legal meta sentence.

• The validity of the final, highest legal meta sentence is to be set as fact.[1]

5.3 “Basic norm (BN)” or Basic and Fundamental Legal Meta-Sentences• LJ agrees with Kelsen partially as far as BN is

necessary and it should be presupposed.• In PL: BN is expected to has a function to found

the objective validity of positive order.• BN is, however, not sufficient as a cognitive

scheme to systematize law in terms of the validity.

• LJ insists that, besides BN, fundamental legal meta-sentences are to be presupposed to systematize law logically.

The most fundamental Legal meta rule sentence

• (mrl):A legal sentence S is valid for a goal G at the time T ←→ S becomes valid for G at time T1 before T & 　not(S is terminated for G after T1 and before T).

• This is a fundamental legal meta rule sentence implicitly taken for granted all 　 regulations.

• The validity of this rule sentence is presupposed in a form of a fact sentence:

• (mf1): mr1 is valid.• All other (positive) legal rule sentences regulate the fulfillme

nt of the first requirement (S becomes valid) or the second requirement (S is terminated) of the above rule sentence.

Meta rule sentences prescribing “a legal sentence becomes valid”

• The rule which decide the first requirement of the fundamental meta rule.

• The accrual of validity of a complex legal sentence follows the accrual of validity of elementary legal sentences which belong to it.

• (r01) become_valid(ES,G,T) <- element_complex_sentence(ES,CS)&become_valid(CS,G,T)

The accrual of the validity of a legal object sentence by exercising the right

(3AA2) "A legal sentence 'X has an obligation to do Z' becomes

valid at time T” <-“Y requires X to do Z at time T “ &“a legal sentence 'Y has a right to require X to do Z' is

valid.”

• Sentences describing rights is not a legal object sentence but a legal meta rule sentence.

• This is a new understanding the relationship between right and duty.

Meta rule sentences prescribing “a legal sentence is terminated”

• These decide the fulfillment of the second requirement of the fundamental meta rule.

• (02)The validity of elementary legal sentence is

terminated if the complex legal sentence is terminated.

• (mr4b) The validity of elementary legal object sentences isterminated when the obligation, which it describes, is fulfilled.

６ Demonstration of the availability of LJ on

Systematization of CISG• I would like to demonstrate the availability of LJ to systematize law in

terms of validity of legal sentences on an example of CISG.

• The systematization of contract law is realized in LES-5. It has the legal knowledge of contract law and the CISG (United Nations Convention on Contracts for the International Sale of Goods.)

• It can infer the result of the application of the CISG to a certain concrete case. It can explain the process of inference and the reason. It can show the logical structuer of legal knowledge.

• LJ has provided the theoretical basis of the analysis of legal knowledge and the construction of the knowledge base.

• The LES-5 might prove the availability of LJ.• Go to demo on off-line; http://www.meijigakuin.ac.jp/~yoshino/

Systematization of CISG in terms of the validity of legal sentences

• 1 Problem: case 8f• 2 Resolution:• 3 Inference to deduce the changes of the

validity of legal (object) sentences• 4 Meta-inference to deduce the validity of

legal meta rule sentences, which apply to solve the problem.

• 5 Functions of fundamental rules sentence and basic rule sentences

1 Problem: case8f

• 1. On April 1, a New York manufacturer of agricultural machines, A (Anzai),dispatched to the Hamburg branch of a Japanese trading company, B (Bernard),a letter containing the following proposal: A will sell B a set ofagricultural machines comprised of a tractor and a rake; the price of thetractor is $50,000; A will deliver the machinery to B by May 10; B must payA the price of the machinery by May 20; the machinery will be transported byan American frieght vessel.2. The proposal reached B's letter box on April 8.3. On April 9, B telephoned A and said, "I accept your offer. However, Iwant the machinery transported by Japanese container ship."4. A delivered the agricultural machinery to a Japanese container ship atthe port of New York on May 1.5. The machinery was delivered to B's Hamburg branch on May 31.6. B examined the machinery on June 5.7. B paid A $58,000 on May 20. (The market price of the rake was $8,000).8. On August 10, the machinery malfunctioned because of a defectiveconnecting gear.9. B notified A of the malfunction immediately.10. On September 1, B demanded that A repair the lack of conformity withinone month.11. A did not repair the defect by October 1.12. On October 10, B declared the contract avoided.13. On December 10, B made restitution of the machine to A.14. On december 20, A made restitution of the $58,000 price to B, plusinterest, and gave compensation for damages B had suffered.

2 Resolutins

3 Inference to deduce the changes of the validity of legal (object) sentences

A contract with the terms "A has the obligation to deliver the agricultural machinery to the buyer. The buyer has the obligation to pay 50,000 dollars to A" was concluded on April 9th.

The contract CS becomes effective at the time T<- The contract is concluded at the time T1 before the time T & not(contract is not effective at the time T) &( ( 3AA1BC The time of commencement for the contract is set at the time T &3AA1BC The time of commencement came at the time T) #( 3AA1BD The conditions for the contract to become effective are set at the time T & 3AA1BE The conditions were fullfilled at the time T ) ) # 'd_call'(T=T1) ) ).

A contract is concluded at the time T <- An offer becomes effective at the time T1 & The acceptance of the offer becomes effective at the time T after the time T1. (And the subrules of this rule.)

1) On April 1st, A(in New York) transmitted an offer to B(in Hambrg). The terms were: A will deliver the whole set of agricultural machinery to B (by May 10th) B will pay 50,000 dollars to A(by May 10th) The machinery is to be shipped on an American freighter.2) This letter reaches B(April 8th).3) On April 9, B told A over the phone "We will accept the offer, but the machinery should be delivered in a Japanese container ship.

The contract with the terms "A has the obligation to deliver the whole set ofagricultural machinery to the buyer. The buyer has the obligation to pay 50,000 dollars to A"

becomes effective on April 9th.

CISG for the relevant case is effective at the time of event on April 9th.

Sentence S is effective at the time T <-Sentence S becomes effective at the time T1 before the time T &

not(Sentence S loses effectiveness before the time T.)

The sentence "The buyer can request for nonconforming goodsto be repaired" becomes effective at the time T.The seller delivered the goods to the buyer &The goods are not conforming to the contract &Repair of nonconforming goods is not unreasonable.

The sentence "B can request for the repair of the machinery" becomes effective on August 10th.

The machinery has abnormal movements due to the malfunctioning gear on August 10th.

Sentence S is effective at the time T <-Sentence S becomes effective at the time T1 before the time T &

not(Sentence S loses effectiveness before the time T)

The Sentence "B can request for the repair of the machinery" is effective on August 15th.

"A has the obligation X towards B" is effective <-"B can request for X from A" is effective at the time T &B requests for X from A.

The sentence "A has the obligation to repair the machinery" becomes effective on September 1st.

The sentence "A has the obligation to repair the machinery" is effective on September 15th.

The contract with the terms "A has the obligation to deliver the whole set of agricultural machinery buyer.The buyer has the obligation to pay 50,000 dollars to A"

is effective on August 10th.

Sentence S is effective at the time T <-Sentence S becomes effective at the time T1 before the time T &

not(Sentence S loses effectiveness before the time T)

B requested A for the repair of rhe machinery on September 1st.

&

&

& Contract is concluded

CISG Part 2 &

CISG Part 3 &

Contract is valid

Contract

CISG Part 2 and 3 are valid

CISG Part 1, Art.1

FactualWorld

Fact 3&

Fact 1&Basic Legal Rule&

&

&

&

&

Fact 4

Fact 5

Fact 6

Fact 7

Fact 8

CISG Part 4 Art. 99 is valid

B may require A to repair the machine.

FundamentalMeta-Rule(mr1)

FundamentalMeta-Rule(mr1)

FundamentalMeta-Rule(mr1)

FundamentalMeta-Rule(mr1)

Meta rule(3AA2) F8: B required A to

repair the machine.

F7: 8/10, the machinery malfunctioned.

F5: Acceptance reachedto the offeror.

F3: Sale of goods between a New York Manufacture and Hamburg branch of Jpanese

trading company.

F1: The CISG was adoptedon 10/4/1980 in Viena

CISG Part 4 Art.99(1)& & Fact 2

F2: USA and China depositedof the tenth instruments of ratification on 11/12/1986.

"A is obligated to repair the machine" is valid on Sep. 15.

Meta rule(r01)

Meta rule(r01)

The CISG is valid

Deduction of Valid Rulesaccording to

the stage structue of law

Basic legal rule sentences presupposed

• (blr1)• States may conclude any convention according to their agreements.• (blr2)• States may set articles on conditions of its validity or effective date

and terminative date into the convention.• (3AA2_1)• IF X may set the legal sentence S and X set S in fact, then the

sentence S becomes valid• Fact1• State A, B, … and N have agreed with to concluded the CISG on

10/4/1980 in Vienna.• They set the article 99 concerning the effective condition of CISG

into the convention.• ------------• The article 99 of the CISG became valid on 10/4/1980

7 Conclusion• LJ has a similar target as Kelsen’s PL.• LJ may have more stable standing points and more pr

ecise methods than PL.• LJ starts from three primitives and analyze a legal syst

em in terms of thee types of alternative basic concept of legal sentence.

• LJ provides a model according to which legal system is actually explained as a deductive system.

• LJ clarified thereby not only ‘basic rule sentences’ but also fundamental legal meta-rules sentences.

• LJ make it enable to realize inference of validity relationship between legal sentences in terms of meta rule sentences.

• LJ contributes to develop a deductive knowledge base.

• LJ may contribute to develop a true science of law.

Finally,

•The most important words:

Thank you!