Main trends of research in the social and human ... - unesdoc - Unesco

General problems of interdisciplinary research and common mechanisms 489
epistemology of logic can a fortiori be placed in relation with cybernetics by a
double movement similar to that just referred to, which we may cite with T.
Greniewski, an expert in connexions between logic and cybernetics.
As to exchanges between logic and linguistics, we shall come to them when
discussing the latter.
8. Systems of non-deducible norms: sociology of law, etc.; customs and habit
patterns
Independently of the specific questions of legal logic which have been discussed,
there exists a major problem the importance of which has found expression in
several contemporary trends in a variety of disciplines, namely that of the general
structure of systems of norms. From this viewpoint of overall structures, which
is becoming increasingly dominant, it is by no means sufficient to know that a
particular legal reasoning can be put in logical form; this does not alter the
fact that a legal system in its total form in the sense employed by H. Kelsen
(from the ‘fundamental norm’ and the constitution to individualised norms
such as all court judgements, diplomas, etc.) is at the same time very close to a
logical system and very different from it.
The analogy is that in both cases there exists a construct of normative values
achieved by means of actions or operations, and that these results are valid
depending on a series of transitive implications. If such and such axioms are
accepted, then such and such theorems TI follow which lead to such and such
other theorems T2, etc., according to a series of implications placed in hierar-
chical order. Thus if a constitution is accepted, then parliament has the right
to enact laws L which are valid by virtue of the constitutional norm; then the
government has a right to take a decision D which is valid by virtue of the law
L; then such and such an office has the right to settle an individual case C in a
valid manner by virtue of the governmental decree D, etc. This succession of
normative constructions (each norm being at the same time the application of
the previous one and the creation of the next one) is readily comparable to a
series of implications, and Kelsen explicitly defines this implicative relationship
under the term of ‘imputation’ (central or peripheral depending on whether it
qualifies the subjects of law or the implications alone).
The great difference however is that if one knows the content of axioms, one
can deduce the succeeding theorems : they were not, of course, tautologically
pre-formed within the axioms, since these axioms are independent one from
another, but the new combinations obtained are ‘necessary’ (they could not
have been other than they are by virtue of the given operations). In the legal
system, on the other hand, one merely knows that parliament cannot violate
the constitution, but within this framework it votes what it likes; in other words
the constructive operations take place in a valid fashion as a function of transi-
tive and necessary imputations, but their results remain contingent because
they are not determined by the form of these operations, only their validities
being so determined to the extent that they are not in contradiction with norms
of a superior category.