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On the Logical Openness of Legal Orders: A Modal Analysis of Law with Special Reference to the Logical Status of Non Liquet in International Law

On the Logical Openness of Legal Orders: A Modal Analysis of Law with Special Reference to the... ILMAR TAMMELO On the Logical Openness of Legal Orders A Modal Analysis of Law with Special Reference to the Logical Status of Non Liquet in International Law Introductory In his recent treatise on comparative law, Principle and Norm in the Judicial Development of Private Law, Professor Josef Esser suggests that the historical and the existing legal orders can be regarded either as logically closed or logically open. According to him, a logically closed legal system is "axiom-oriented" {"axiomatisch orientiert"). At its top there are deductively fertile major premises, from which answers to legal questions can be derived in a logically guaranteed manner. In contrast thereto, a logically open legal system does not "move in the logical dimension of derivation." It is "rhetorically oriented" to particular problems and moves in the historical dimension by linking the cases to be decided with precedents and resorts to rhetori­ cal principles in elaborating anew just solutions in every single case. Hence in an open system principles are not claimed to be mechanical keys to determinate solutions. The decisions are carried here by intui­ tive standards such as "bonus paterfamilias," "reasonable care," and the like. This distinction can be regarded as based only on http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

On the Logical Openness of Legal Orders: A Modal Analysis of Law with Special Reference to the Logical Status of Non Liquet in International Law

Tammelo, Ilmar
American Journal of Comparative Law , Volume 8 (2) – Apr 1, 1959
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Publisher
Oxford University Press
Copyright
© 1959 by The American Association for the Comparative Study of Law, Inc.
ISSN
0002-919X
eISSN
2326-9197
DOI
10.2307/837458
Publisher site
See Article on Publisher Site

Abstract

ILMAR TAMMELO On the Logical Openness of Legal Orders A Modal Analysis of Law with Special Reference to the Logical Status of Non Liquet in International Law Introductory In his recent treatise on comparative law, Principle and Norm in the Judicial Development of Private Law, Professor Josef Esser suggests that the historical and the existing legal orders can be regarded either as logically closed or logically open. According to him, a logically closed legal system is "axiom-oriented" {"axiomatisch orientiert"). At its top there are deductively fertile major premises, from which answers to legal questions can be derived in a logically guaranteed manner. In contrast thereto, a logically open legal system does not "move in the logical dimension of derivation." It is "rhetorically oriented" to particular problems and moves in the historical dimension by linking the cases to be decided with precedents and resorts to rhetori­ cal principles in elaborating anew just solutions in every single case. Hence in an open system principles are not claimed to be mechanical keys to determinate solutions. The decisions are carried here by intui­ tive standards such as "bonus paterfamilias," "reasonable care," and the like. This distinction can be regarded as based only on

Journal

American Journal of Comparative Law – Oxford University Press

Published: Apr 1, 1959

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