REASON AND REALITY

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Stig Jørgensen

REASON AND REALITY

Acta Jutlandica L X II Social Science Series 17

AARHUS U N IV E R S IT Y PRESS

1986

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Printed by KJ Offset, Odder ISBN 87 7288 002 3

ISSN 0106 0937

AARHUS UNIVERSITY PRESS Aarhus University

DK-8000 Århus C Tel. 06 19 70 33

Published with the support of the Danish Social Science Research Council and the Gangsted Foundation.

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Preface

T he articles collected here under the title Reason and Reality (G rounds and M o

tives for Legal and other Decisions) have their dealing with the basic elem ents of our political, m oral and legal decisions in common.

T he analysis of these elem ents dem onstrates th at there is an essential relation

ship between the different types of decisions. T he fact is th at they are all the out

come of a m ental process guided by purposes and motives. These purposes can be norm ative as well as pragm atic and thus refer to both legal and m oral rules and changes in reality.

If decisions are not to be irrational but are to m eet the demand fo r reason, there m ust be given grounds for these decisions in the form of argum ents. T here m ust be given grounds for the legal decision for the sake of legal security, w hich is a n other aspect of foreseeability and reliance, the preconditions of the existence of any organization or society. T he sam e reasons m ake grounds im perative also for political and m oral decisions.

M otive and ground are not identical phenom ena but usually two aspects of the sam e token. T he m otive is the actual psychological cause, w hereas the ground is the argum ent justifying the decision by referring to the norm s or values which are considered to be valid by the parties.

M otive and ground are thus of different logical categories, but the decision m ust not necessarily be m otivated by other grounds than those referred to. O n the one hand it is im p o rtan t to be critical as regards the grounds given by oneself and by others, but on the other it is a condition of the functioning of an organi

zation or a society th at one can trust the grounds given by others.

O pinions and decisions are not objective. N either are legal and other n orm a

tive decisions, which according to the previous conception were conceived as the outcom e of a deductive process, a conclusion from an abstract rule to a concrete case. T he reason why the legal decision appears in this way is th at in its final form it has selected and interpreted the legal m aterial and qualified the factual condi

tions, w hich are disposed to a legal decision, in a linguistic form suitable for the interpreted rule.

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In ordinary as well as in legal practice not only the norm s bu t also the reality has to be interpreted. T his interpretation is not unbiased but is m ade in accord

ance with the hermeneutic background for the perception of reality. O u r world pic

ture, physical as well as ideological, helps us to see w hat we expect to see, and in a way also w hat we wish to see, so th at we can understand our experiences. T he legal ideology limits the regards which m ay be taken into consideration in the legal decision-m aking, whereas there are different degrees of freedom in the m oral, political and private decision-m aking.

T he reality principle dem ands th at we respect the world picture and the natural laws which at the present tim e give us the optim al predictability of the real phe

nom ena. T he auditories, to which the legal, the political, the m oral, the esthetic, etc. decision-m aker addresses himself, are different with different ideologies.

Therefore the argum ents will also be different and thus not objective, b u t repre

sent different degrees of intersubjectivity according to the extent, to w hich the a d dressees share the ideology, be it professional such as in legal, scientific and techni

cal m atters, or political in the widest sense.

Some of the articles deal with legal and m oral decisions, others w ith the inter

relation between socio-economic organization of society and legal-political rules. In particu lar some of the later articles analyse the possibility of the survi

val of democracy on the background of the analysis of the developm ent and func

tion of contract and property right.

T he articles ap p ear in English, although some were originally published in D anish.

U nfortunately D anish is no world language!

Stig Jørgensen

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On Meaning, Opinion and Argumentation

W hat is the m eaning?1)

W hat is the m eaning of stating th at 2 X 2 = 4 or th at the moon is m ade of green cheese?

W hat is the m eaning of life?

I m ean th at the introduction of nuclear power is a crime against m ankind!

W hat is the m eaning of using the word or the term »m eaning«: the m eaning of

»meaning«?

It is com m on knowledge th at the reasons for disagreem ent m ore often have to be found in the circum stance th at we are talking about different things th an th at we have different opinions of w hat is fact or w hat is a proper act.

All - or m ost - university graduates have been affected by the so-called »positiv

ism debate« of the last decade.2) T h e criticism of positivism has been based on the concept of m eaning of the logic-em pirical theory. A ccording to this theory it has only sense to m ake statem ents, as the m eaning of a sentence is identical with its conditions of tru th , i.e. the criteria, which have been established in advance either in definitions or in accordance with a m easuring tool.

O nly such analytic or synthetic sentences referring either to logic-m athem ati- cally deductive systems or to m easurable sides of reality can have m eaning, as they can be either true or false. O n the other hand m etaphysical or evaluating statem ents are »m eaningless«, as they have no » truth conditions« or criterias of truth.

A ccording to this conception sentences as: »God is our creator« or » It is evil and unjust to preserve C apitalism « are w ithout »sem antic reference« and thus also m eaningless.

A lready a long tim e before the criticism of positivism philosophers had real

ized th at it had sense to speak of pixies and m erm aids, even though they existed only in the hum an im agination. Therefore, it is not m eaningless either to speak of God and Devil, as m ost people u nderstand the function of such sentences as illustrations of psychological and religious conceptions of h um an beings. In the

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same way it is possible to make statistical exam inations of the views of D anes on w hat is good and bad, on the different political ideologies and other evaluations.

Since the philosophers David H um e and Im m anuel K an t at the end of the 17th century introduced their cognitive criticism , it has, on the other hand, been gen

erally accepted th at there is a fundam ental difference betw een cognition and evaluation, betw een »sein« and »sollen«, as it is in G erm an .3)

T heoretical cognition deals with the structure of reality, and it m ust therefore be subjected to the law of necessity, i.e. the law of causation; if not, it would be impossible to obtain and m ake a conception of reality. O n the other hand our acts m ust be based on the condition of »freedom of the will«, for in case our will was not free, there was no basis for m aking us responsible, and w ithout responsi

bility an organized social life am ong hum an beings is unthinkable.

T he question is now, if the fundam ental distinction betw een theoretical and practical cognition also m eans th at there is no practical possibility at all of bridg

ing between theoretical cognition and practical action. T he outlook would be dark, if there was no difference at all between »rational« and »irrational« evalu

ations and actions. Com m on sense, which is a good foolproof against frantic con

sequences of logical systems, tells us th at there are or ought to be possibilities of acting sensibly. O f course there are such possibilities, and in reality no sensible hum an being has ever denied that.

In this connection I usually tell the anecdote about the fameous surgeon who during a party authoritatively m aintained th at as he had now operated for so m any years w ithout ever encountering the soul, his comm on sense told him th at there was no soul, to which the innocent one of the party - a lady I think - rem arked w hether he had ever encountered the comm on sense.

T he curious thing about the criticism of positivism as it was at the end of the 1960s is, however, th at it chose to throw out the baby with the bath water. T he realization of the fact th at cognition and evaluation were not two incom patible concepts led some people to believe in the irrationality of cognition, instead of aim ing at rationality in evaluation and decision. As it had to be recognized th at our description of reality cannot be reduced to the results of the m easuring tools of n atural science, and as it had to be recognized th at the description necessarily contains some ab stract concepts expressing our interests and aims such as: au to mobile, table, negligence, terrorist and so on, it also had to be recognized th at all description was evaluating: political, as it was called in an extrem ely extended m eaning of this word.

As Friedrich Nietzsche in the last century could say, »God is dead, therefore everything is perm itted«, our so-called M arxists could about 1970 conclude th at as cognition is not objective, all subjectivism is perm itted. W hen all cognition is 8

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»political«, as it was claimed, there was an a p p a re n t argum ent for using the science in the service of politics, and this m eant with an odd shifting of the prob

lems th at only one particu lar political ideology had the right to represent the scientific truth, b ut th at society’s political control of the system of education and research in general is a m eans of oppression and »Berufsverbot«.

These wrong - or at any rate unnecessary - conclusions of actually correct pre

misses are, I presum e, as a rule expressions of an unconscious m anipulation of one’s own consciousness or the consciousness of others, ruled by inner needs or interests, but one cannot and ought not ignore th at som ebody deliberately ex

ploits an am biguous way of presenting the problem s in order to serve political objects.

However, one has to realize th at the conclusion to be draw n from the non-objec

tive character of cognition, is rath e r an attem p t to »objectify« cognition as far as possible by defining the criteria, on which the description is based. T he evalu

ations are bridges in the same way, and therefore they are not objective or abso

lutely subjective either, but intersubjective, as far as the definition of the conditions and criteria, on which one acts or to which one attaches great im portance on m aking evaluating statem ents, partly will be based on problable assum ptions of the structure of reality (cognition), partly will attach the evaluation to m ore or less generally recognized aims and interests.

And here we at last return to the concept of »m eaning«. C onsequently the word »m eaning« has, as we have already seen, a quite distinct m eaning w ithin the philosophical language attached to a certain scientific theory. But

»m eaning« m ay m ean som ething else; it m ay m ean th at the speaker has had a certain intention with w hat he said or did. It m ay also refer to the fact th a t the speaker w ants to express a certain philosophy of life in general, for instance the belief in God. But it m ay also well be th at the speaker in very m odest phrases will express a philosophy, an attitude, an evaluation in general: T h a t is my »m ean

ing« i.e. opinion about this m atter!4)

O pinions can be conceptions of reality-phenom ena: »In my opinion m ost people are actually against nuclear power!« or »The deleterious effects of w ind

mills are m uch less than those of atom ic power stations«. But m ore often they are expressive of a political, religious or cultural evaluation, i.e. a statem ent of w hat is the right or w rong act in the speaker’s opinion.

T he concept th at can combine statem ents of »m eanings« i.e. opinions in gen

eral is: belief. »I believe, it is dangerous to build an atom ic power station«, and:

»I believe th at it will be best for hum an beings to live in a socialist society«, or: »I believe th at it is unjust to m aintain the inequality of society«.5)

Now you are naturally free to believe or say w hat you like. But you can only

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dem and to be taken seriously in a debate on facts and acts, if you are able to ad duce some argum ents in support of your belief. O nce it was defensible to advo

cate the belief th at the earth is flat as a pancake, or th at the moon is m ade of green cheese. Now adays people advocating such a belief would not be taken seri

ously in the general social debate. T o take th at kind of assertions seriously would conflict with our practical interests in the treatm ent of the earth and the moon.

However, history proves th at a wrong theory does not necessarily m ean th at you do not benefit by your search. »Search, and you shall find«, the Holy W rit deeply says; b u t it does not say w hat you shall find. T he fact th at the alchem ists acted on a wrong theory and tried to m ake gold did not prevent them from learn

ing useful things, which in an im proved theoretical form becam e the foundation of the science of chem istry. In the sam e way astronom y was based on a wrong astrologic theory about the relation betw een the laws of the U niverse and the laws of society. A nd so on.

I am aw are of the danger of these considerations. By m eans of this arg u m en ta

tion all kinds of dilettantism and political and religious arts of seduction can be defended. But nevertheless we m ust be aw are of the fact th at the cognition can only be extended, if we accept new theories and ways of presenting the problem s.

T hom as K uhn has actually w anted to speak of paradigm revolutions.6)

An abstract debate about conditions of society in general will not do. T he or

dinary population, which is not trained in abstract thinking and argum entation, can only be engaged in a political debate, if it has a concrete grounding. N ow a

days with the developm ent of electronic m edia, the form ation of opinions with its good or bad qualities is attached to persons and cases.

It is good copy, because it can be photographed and dram atized, and there

fore in the natu re of the case it is nothing b ut pseudo-events. T his possibility of

»cultivation« of d ram atic and thereby engaged elem ents in these pseudo-events was first seen and exploited by the students of psychology in C openhagen who in 1968 »occupied« and »blocked« their institute, b u t naturally they were inspired by sim ilar student actions in Berkeley, Berlin, and P aris.7)

Since then this kind of aw akening technique has been used by the students to a high degree. However, m any social groups and professional and industrial bod

ies have turned to these extra-parliam entarian methods: fisherm en, seam en, farm ers, printers, drivers, and in p articu lar academ ic and sem i-academ ic groups not to m ention foreign terrorists and hijackers.

T he particu lar thing about these actions is not th at they solve any problem s, but th at they point out the problem s and stim ulate the spectators, the readers or the participants to engage themselves, to form an opinion (»m eaning«) of the

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problem s in order th at this affection of public opinion m ay later on result in a sol

ution of the problem s and in a political action in quite other fields.

If we therefore by an opinion u n d erstand a conception o f or a belief in the existence of a certain state of facts, or th at a certain course of action is the right one, we m ust consequently be willing to or able to give grounds for this conception or be

lief, th at is if we w ant to be taken seriously as rationally thinking or acting indivi

duals.

However, we m ust not forget th at these grounds are often a product of our a t

titudes, needs and ideas, which are deeply rooted in our n ature and culture and th at our description of actual facts often has to be m ade not in certainty b ut with different degrees of probability. It is self-evident th at these factors based on feelings and uncertainty set limits to the certitude of your argum ents especially in circum stances which are im p o rtan t to the society and its organization. For w hat is eventually a hum an being? How is the n ature afm an? W hat are his n a tu ral and w hat are his cultural needs? W hat conception of m an is the right one?8) H ere the agreem ent ceases and here certainty has to give way to belief; here lies the root of all political thinking. M an is as a m atter of fact at one time a biologi

cal being w ith needs and lim itations, but he is also able to a d a p t him self to the environm ents as well as he him self can m ake new environm ents, to which he can a d ap t himself. M an cannot hop on his tongue, but today it is im possible to say m uch definite about the nature of m an.

However, things concerning the duplicity of individual/society, intellect/feeling, freedom /security, m an/w om an can be outlined w ithout stating certain li

mits. And developm ent-psychologists, sociologists and other professionals can no doubt speak about circum stances in the conditions of the individual and of the society, which result in an unfortunate or m orbid developm ent of individuals and society, but th at is all together very uncertain.

But there are consequently m any variations of opinions and therefore also a basis for different political conceptions of the »right« organization of society and the »good life« for the individuals. Therefore, there will always be a constant po

litical struggle going on concerning the organization of society and the d istrib u tion of the social values. H ere the dem and for freedom and equality pulls in each direction, also because certain trades and interests make the social groups give different priority to these needs. It is self-evident th at employers give a high p ri

ority to freedom, whereas the employees and those who qualify them selves for public offices will give equality the higher priority; the latter group because the carrying through of equality am ong different people will require a public bureaucracy and a welfare-system.

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W hen all this has been said, it is quite understandable th at the social debate m ay assum e forms which do not harm onize with the ideal picture of the form a

tion of opinions as being well-founded conceptions of reality or the right act seen in relation to a certain purpose.

A recently published investigation of m odern »grass root m ovem ents« refers to the complexity of the m odern society9) as an explanation of the decreasing party-political interest. Not to be confused with the increasing political interest, which is reflected in the heavy polls. Besides according to the investigation the different interest groups have been integrated into the political system to such a degree th at the traditional constituency organizations have lost their function of canalizing the political interests. Therefore, it is alm ost exclusively the m aterial interests th at influence the political debate.

O n the other h and we could m ention the political developm ent in the struggle between »left« and »right« during the last century; also the developm ent in the same period of the »folk high school« in opposition to the academ ic educational system could be m entioned here. T he religious revivals have the same function as the people’s revolt against the elite of society: landow ners, officials, and m inis

ters of religion. In the sam e way C hristianity was once a proletarian m ovem ent, which used feelings and irrational argum ents in the struggle against the existing system. A t a later date Protestantism and R om anticism were sim ilar irrational revolts of the lower classes against an existing rational elite society.

T he developm ent of Socialism tow ards reform Socialism which is a com pro

mise with the established society is another example of the fact th at the »irration

al« people’s opposition to the existing elite society has developed beyond the conditions, which were the basis of its »rationality«. H egel/M arx m ade it quite clear th at the organization of any society depends on the historical and m aterial conditions, which dem and structuralization, which again contributes to a new developm ent which dem and a new structuralization. T he developm ent of society will always move from a rom antic-revolutionary phase, where new goals are laid down by feelings and needs, over an idealistic phase, w here the efforts are concentrated on the carrying into effect of these goals and further on to a ra tionalistic phase, where the results obtained are adm inistered, until the develop

m ent of society passes its »rational« conditions, and enters upon a new rom an

tic-revolutionary p h a se .10)

At the m om ent we are presum ably in an after-revolutionary phase, w here new people’s m ovem ents, which were aroused by the revolutions of the 1960s, try to mobilize the population on »idealistic« and »m oral« dem ands to society. A bout 1970 the environm ental problem s took the role of the student revolt as the most im p o rtan t subject in the social debate. At the sam e time the catastrophism of the

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so-called »Rome C lub« gave the starting signal to the ecological debate, which is concentrated especially on the idea of m an ’s interdependence with natu re and hum anity in a global sense.

T he »irrational« natu re of these m ovem ents is reflected in their disconnected and incoherent argum entation in favour of their opinions and points of view. For instance the danger of explosion was the original argum ent against nuclear pow

er stations in D enm ark, later on it becam e the danger of terrorist attacks, etc., and now adays the concern is concentrated on the risk by the radioactive waste.

T he inconsistence can for exam ple be seen in the reluctance to com pare the risk by nuclear power with the risk by alternative traditional energy supply. Sim ilar examples can be found in the environm ental and resource debate; am ong other things it is peculiar th at the sam e groups dem anding »zero grow th« and re

trenchm ents of the resources belong to the higher income groups and to the or

gans dem anding higher income to their m em bers.

I do not m ention this because I w ant to initiate a debate on this basis. O n the contrary it is my intention to show th at this is impossible and also against the idea of the m ovem ents. I m ay seem frustrating to the expert, who thinks th at he is to m ake an objective argum entation in favour of his well-founded opinions of technical and economic questions, to be disarm ed by new argum ents concerning quite different things.

As a m atter of fact the intention is, however, to avoid to come to an agreem ent with the experts on these questions. O n the contrary the intention is to throw suspicion on the experts by m eans of new questions and new assertions, which the experts m ay then go home and consider while the opponents are already pre

paring the next step.

As Bruno Bettleheim already wrote about the ideologists behind the youthful revolution:11) T heir intention is not to m ake people recognize their concretely for

m ulated dem ands; if this were the case these knights of m odern tim e would lose their »case« and have to go through an idle w aiting for a new case. Therefore, the dem ands are constantly raised to such a degree th at they can be quite sure that they (the dem ands) will not be fulfilled. By doing so they can secure the im por

tan t group solidarity am ong the convinced and the appeal to cognated groups, which then identify themselves with the rebellion through the provoked group pressure of society.

N ow adays people talk about the »system transcendent« character of the people’s m ovem ents. By com prom ising with the established society the public support is lost, Revisionism does not only betray the cause of revolution, it also takes the wind out of its own sails. T h a t is w hat »Folkebevægelsen mod EF«

(The People’s M ovem ent against the EEC) has learned, and th at is w hat makes

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m ovem ents as O O A (organization against nuclear power) and N O A H (envi

ronm ental m ovem ent) so m ilitant and uncom prom ising.

O f course it is not a question of nuclear power in D enm ark. Any enlightened hum an being can see th a t it is ridiculous to keep D enm ark free of nuclear power stations because of the waste problem , w hen at the same tim e all other countries build nuclear power stations at a rapid pace. A nd no one at all believes seriously th at »zero growth« will prevent us from running out of oil, it m ay at best post

pone the oil exhaustion for a few years, while at the sam e tim e it will be disastrous to the developing countries, w hom we also w ant to help. An elem ent in the inco

herent collection of opinions is, however, th at the industrial countries have ex

ploited the developing countries and therefore owe them a com pensation, an as

sertion w hich is w ithout an economic foundation. In the same way the assertion of resource exhaustion is w ithout bearing reality and contrary to the opposition to nuclear power.

Briefly and to the point. T he m ore radical and incoherent opinions, the greater chance of public success. For it is a question of som ething quite different, i.e. a new people’s and »irrational« revolt against the elite, which is a safeguard of the experienced unreasonable and unjust social order. But God save the revolt from victory, which would result in the death of the m ovem ent, because of its obvious powerlessness tow ards the »actual conditions of iron industry« dem anding the expert knowledge, w hich some people seem to despise.

However, being a continuous revolutionary m ovem ent it can keep the pot boiling for some time, and it m ay cause th a t the projects: EEC , nuclear power, natu ral gas, and so on will be considered once m ore, before the final decisions are m ade. A nd it is true th at such decisions are irrevocable; a new technology and organization result in social changes, which m ake a reversible process im possible. For exam ple the car cannot be abolished now w ithout incalculable so

cial consequences.

Like the salt to and the leaven in the bread those »grass root m ovem ents« will at one tim e be able to engage the public form ation of opinions on w hat is good and bad and through their exaggerated criticism be able to activate politicians and technicians, i.e. the elite to use the utm ost thoughtfulness before m aking ra dical social changes. I t is true th a t there is w ithout doubt a group of politically radical persons trying to fish in troubled w aters, b u t the experiences from the universities show th a t they constitute a very small m inority, and th a t they do not in the long run m ake up a real th reat to dem ocracy and to objectively defensible decisions.

B ut it m ay now and then be difficult to grasp the m eaning of it all.

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Notes

1) In the Scandinavian languages the word »meaning« also means intention, object, purpose.

2) See to the following StigJørgensen, Lovmål og Dom (1975), p. 9 ff., 74 f fJustus Hart

nack:, Den ny Filosofi, Berlingske leksikon Bibliotek (1963), p. 69. See also A. Aamio }s book, On Legal Reasoning, which in essential points harmonizes with my views.

3) See to the following, Stig Jørgensen, Samfundets syn på godt og ondt, Dansk Udsyn 1978, p. 313.

4) Justus Hartnack, l.c. (note 1) p. 71.

5) See Nils Jareborg, Varderingar (1975) and my review in Tidsskrift for Retsvæsen 1975, p. 613.

6) See J. Dalberg-Larsen, Retsvidenskaben som samfundsvidenskab (1977) Chap. 2.

7) See Stig Jørgensen, Modstandsret og ungdomsoprøret, Tidsskrift for Retsvæsen, årg.

1970 p. 198.

8) See Stig Jørgensen, Values in Law (1978), p. 148 ff.

9) P. E. Mouritzen and others, Borgerdeltagelse og græsrodsbevægelser. (Politica 1978).

10) Stig Jørgensen, Ret og samfundsdebat (1972), p. 107, see also Ugeskrift for Retsvæsen 1978 B, 141 ff.

11) See note 6 above.

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Does Reality Exist?1)

I rath er think th at someone m ight believe th at I am completely out of my m ind, or th at I am trying to make fun of you. For it seems to be a question w ithout any sense. O f couse reality exists; or how should I be able to w rite this?

T he D anish au th o r Svend Åge M adsen published a book some years ago with the title: »Sæt verden er til« (= Suppose the W orld Exists) (1971). It is about a m an, who is reading a book about the books th at he and his characters are w rit

ing. Each of them writes a book of his own and in doing so creates a world ac

cording to his own needs and ideas.

In these books certain persons and events recur; therefore it ap p arently can

not be a dream or fiction, as it is, I suppose, impossible to dream other person’s dream s. T hus, reality seems to be after all, as som ething existing outside the books, and with which the books therefore deal. - U ntil you suddenly rem em ber th at there is only one w riter w riting about these books, and therefore he knows from the very sta rt or rath e r has invented the reality described in the different books. So we do not receive any definite answ er to the question, w hether the world exists, or w hether it is created by ourselves, as it is created by the au th o r in his books.

T hus, the a u th o r’s intention with his book is to draw attention to the fact that presum ably there is som ething in the surrounding world and in our conscious

ness th at we can see, hear and feel, and by m eans of our senses we are able to per

ceive and react to an outside world, such as is the case with anim als and babies.

However, in order to be able to u nderstand w hat we perceive these sense im pressions have to be translated into a language th at so to speak describes reality in a code which can be understood by the com puter of the hum an brain. By means of the com puter these im pressions are worked up in w hat we call thoughts.2)

T he language3) is the rem arkable signalling system which no other species of anim al but the hum an being has developed; and only the hum an being is able to transfer experiences and thoughts about these experiences from one individual to the other and from one generation to the other and thus create culture. O th er

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species of anim al have signalling systems, by m eans of which they can com m uni

cate, call, threaten, w arn, and so on, but they have no language, and consequently no consciousness. Recent experim ents seem to indicate th at the prim ates - the anthropoid apes - have certain very prim itive faculties of thinking; they can take in m ore abstract inform ation than signals, and therefore »understand« and solve - through thinking - m ore complex problem s, for instance by m eans of tools.

However, the hum an cerebrum is abnorm ally enlarged com pared with th at of other anim als, and a special ability to speak situated ju s t behind the left tem ple has been developed. W hen this speech centre is hurt, either by a brain injury, a tum our or a haem orrhage, the hum an being can no longer speak, but the ability to think does not necessarily cease, because the ability to speak is lost, w hich the relatives of a brain-injured person should always bear in m ind.

However, it is reasonable already now to point out the fact th at the faculties of speech and reasoning are essentially attached to the left cerebral hem isphere, w hereas the feelings, the sense, and the creative faculties are attached to the right cerebral hem isphere. T his does not m ean th at the right hem isphere cannot think at all and the left hem isphere cannot feel at all; the fact is th at a lot of connecting

»threads« transfer inform ation from the right to the left hem isphere and vice versa. However, the right cerebral hem isphere cannot speak!

A violent debate took place in D enm ark in the m iddle of the 1970s, when a psychiatrist w rote th at w om en’s left cerebral hem isphere is less well-developed than th at of men, and th at women therefore think less logically and coherently.

O n the other hand, their right hem isphere was found to be better developed than th at of men, which should explain the old prejudice th at women have a better in

tuition; and thus w ithout m en’s theoretical reasoning they can arrive at rational conclusions with som nam bulistic certainty. I shall pay no m ore attention to this theory, which naturally is not very popular in these years of equality between the sexes.

T he French au th o r Jo sep h E rnest R enan has, however, affirmed this division of labour betw een the right and the left cerebral hem isphere. H e describes his poetical creative procedure as a crowd of ideas and thoughts, w hich are screened by rational consideration.

By certain cerebral-physiological experim ents in connection w ith the tre a t

m ent of epileptics it has been dem onstrated th at an im provem ent arises when the connecting »threads« betw een the right and the left cerebral hem isphere are cut. Besides, by these experim ents it was possible to obtain an insight in the function of such a »split brain«. - A visual im pression was led through the left eye, which is connected w ith the right cerebral hem isphere. After th at the person of the experim ent was asked, w hat he saw; however, as the right cerebral hem i

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sphere cannot speak, and the left one does not know w hat the right one has seen, the person talks nonsense, while the right hem isphere makes the person shake his head. If, then, a visual im pression was led through the right eye to the left ce

rebral hem isphere, the person was able to answer, but his answ er was often quite hasty and rash.

It is now possible to conceive reality in two com pletely different ways. We m ay look upon our senses as a cam era and our consciousness as a film strip, cur

rently reflecting objects in reality. However, we m ay also invert this model and consider our consciousness as a film projector, projecting our im pressions on a large screen, which we then m ay call reality.

In the form er way of considering reality we could regard our cognition as »ob

jective«, i.e. valid to all hum an beings, who would therefore so to speak see the same pictures and call them the sam e nam es. T his was the ideal of the theory of cognition nam ed »logical em piricism « or »positivism«, because it conceived rea

lity as som ething preexisting, which could be depicted and described u n am bi

guously truly or falsely. And this was the very purpose of the theory, which in

tended to separate science from politics and religion.

And here we touch the very crux of the m atter. If we do not look upon reality as som ething preexisting, but as som ething created by the individuals »project

ing« their im pressions out into the surrounding world, there will be no difference between dream and reality, and between fiction and reality.

T he G erm an idealism in the first h alf of the last century thought in fact that cognition had this »creative« character. In the rom antic poetry, w hich was a fur

ther developm ent of this idealism , it is the poet, who creates reality by virtue of his genius. T he D anish rom antic poet A dam Ö ehlenschläger’s A lladin is the cheerful son of nature, who makes reality conform to his wishes by m eans of his magic lam p.

T he subjectivity becomes the truth, as it was later said by the D anish philo

sopher Søren K ierkegaard. T hus, the tru th is not objective - as assum ed by posi

tivism in its theory of reflection - in as m uch as it (i.e. the truth) depends on the person, who looks at it.

T his dissension was a contributory cause to the youth revolt at the end of the 1960s. In the post-w ar era there had been a tendency to accept life as it was, be

cause it was im p ortant to re-establish the societies after the destructions of the war. T hus, there was an inclination to consider economic grow th as the crucial and alm ost »objective« value in life, so th at the object of politics and hum an acti

vity as a whole had to be to increase the prosperity in society. C onsequently, there was a tendency to conceive our acts as m ore or less »appropriate« w ithout further precision.

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Then a so-called »critical« science called in question the assum ption that m ate

rial values and economic grow th alone were self-evident truths. T he G erm an- A m erican sociologist H erb ert M arcuse spoke of »the one-dim ensional hum an being« and em phasized th at »the whole hum an being« consists of feeling as well as intelligence. Freedom , he said, is m ore im p o rtan t than m aterial goods; there

fore, the essential thing is to organize the society in such a way th at oppression is eradicated. As the C apitalist system in his opinion was an oppressing system, because it subordinated hum an beings to the m aterial production, he argued in favour of a new M arxism , which by the abolition of private property of the means of production would free hum an beings from the oppression of production, as it was possible now to a d a p t production to the sim ple needs of h um an beings.

It is quite u nderstandable th at such a theory had an enorm ous influence on a generation of young people, who had never been in w ant, and who had never known the horrors of w ar and the N azist and C om m unist tyrannies w ith their total control of the h um an consciousness.

T hey represented a generation of young people, who had received a good edu

cation on the one hand, but was taught, in accordance with the theory of m otiva

tion, to m ake dem ands on the m ethods of the school on the other. It was not the pupils’ fault, if they had not learnt enough; the teachers were to blam e, because they had not been capable of m otivating the pupils sufficiently. T he m ain thing was no longer to achieve w hat you m ay call »concrete knowledge«, but to be able to »understand« the coherence in things. C onsequently, the separation of the subject m atters was abolished; subjects like history, geography, biology and so on were replaced by »social studies«, «natural studies«, and »general stu

dies«; »project work« and »group work« were m eant to »activate« the pupils and to make them understand the im portance of »co-operation«. In the subject »D an

ish« it was found to be more im p o rtan t to stim ulate an oral delivery than to de

velop a correct spelling and punctuation.

By giving a higher priority to understanding and m otivation than to know

ledge and the perform ance of the individual, this kind of schooling will naturally displace the p u pils’ self-knowledge and m ake them place the responsibility on the »system«, i.e. the school system, the social system. A »critical« attitude, which is a consequence of the tendency to m ake a m axim um of dem ands on oth

ers and a m inim um on oneself, will easily develop into a general dissatisfaction, if it goes together with a decreasing actual understanding of reality and the func

tioning of n atu ral and social laws.

And this was ju s t the case, as in the first place the technical as well as the social developm ent had created com pletely new and com plicated m echanism s, which

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were difficult to deal with; secondly the school system did no longer qualify the pupils to understand these coherences.

T hus, the protest against a m aterialistic attitu d e and au th o rita ria n and op

pressing institutions - which were im puted to the older generation by the young people - assum ed the form of a »criticism « of a »positivist« theory of science.

This theory was said to be conservative and »reactionary«, because it did not go beyond »describing« the positively given reality. T he older generation only asked: how? and not: why?, or rather: why not?, i.e. why are things - especially social conditions - as they are, and why a re n ’t they organized in another way?

Therefore, science and consequently our whole cognition were claim ed to be

»political«. »Positivism«, i.e. the theory of reflection, is reactionary, w hereas

»critical science«, i.e. the theory of projection, is revolutionary and liberating.

T hus, it lay n ear at hand for those young people to consider all acts w ith the p u r

pose of changing society as »scientific«.

»Action research« was a new idea, which consisted in m aking the population conscious, i.e. change its consciousness, so th at it »realized« th at the right thing to do was to change society in a »liberating« direction. According to »New M arxism « it could be proved scientifically th a t Socialism would necessarily oc

cur when the oppressing character of private property was abolished, and th at the consciousness reflects the m aterial system of production in society. N ever

theless the supporters of this theory found th a t they had to further this develop

m ent by influencing the consciousness of the population in this direction by m eans of different actions.

O f great im portance was the new mass m edium , which during the 1960s had m ade its entry into m ost homes. T V brought pictures of »reality« directly into people’s homes, and so to speak turned reality into pictures, into films. It is a question w hether it was the youth revolt th at deliberately exploited the ability and lim itation of the T V -m edium to transform reality into pictures, or w hether it was the very conditions of the T V -m edium th at led to an extrem ely close cov

erage of these »actions«.

At any rate it is quite obvious th at it was the fortunate m eeting of incidence and possibility th at conditioned the success of the youth revolt as well as of TV . Very quickly it was learnt how to arrange a »happening« or a »pseudo-event«, i.e.

som ething th at did not really take place, but has been arranged for the sake of TV . J u s t as the consciousness according to the theory of projection cannot distinguish betw een fiction and reality, the T V -m edium cannot distinguish be

tween real events and »pseudo-events«. T he arranged reality has ju s t as m uch reality as has the »real« one. »Active report« and »engaged journalism « have be

come the ideals of a new generation of journalists.

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However, the reasoning goes further than that. »News« is in principle som e

thing th at takes place w here jo u rnalists are present, i.e. jo u rnalists who are in a position to w rite and publish w hat they see. In the areas of the w orld, which are not covered by journalists, there will consequently be no »news«, ju st as A m e

rica did not exist for the E uropeans, until it was »discovered« by C olum bus.

In practice this m eans th at nothing happens in the politically uninteresting parts of the world, whereas a lot of things happens, w here the jo u rnalists are p re

sent beforehand owing to considerable political problem s. For instance the V iet

nam W ar and the crises in the M iddle E ast (respectively) was and is covered very closely by the world press; this is the reason why m any m ore things take place here, w hich do not take place elsewhere, because the press is not present beforehand.

In two of his latest novels the G erm an a u th o r H einrich Boll has dealt with the cruel inclination of the press to create hum an tragedies in a good cause. This m ay happen, when the private life of chance persons becomes a public m atter, because the press and the police as a precaution supervise or protect certain per

sons or groups. In his latest book: »Fürsorgliche Belagerung«, a w om an neigh

bour of a family being protected by the police gets her affair w ith another m an than her husband disclosed, w hen the police investigates her friend’s »suspi

cious« conduct. T he result is that the lives of three persons are ruined. - In the other book: »Die verlorene Ehre der K a th a rin a Blum«, it is also a stray acquaintance with a w anted terrorist th at arouses the unw anted interest of the press and the police.

H ere we touch on an essential point: our cognition of »reality« depends on the fact th at somebody is present, who can show or tell w hat is going on. T his will necessarily result in a distortion of the proportions, owing to our »interest« in knowing som ething. I f there are no jo u rnalists present we shall not be informed, but if there for some reason happens to be jo u rnalists in the vicinity, we shall hear quite a lot which does not have anything to do w ith the reason why they are pre

sent.

However, there is also another side of the m atter. I f the press has no access or is not allowed to say w hat it w ants, we shall not be inform ed either, even if we m ight be interested, and in case we hear anything, the inform ation will be faked.

For instance we received a steady flow of words and picture from the V ietnam W ar, in fact we heard and saw so m uch th at it is seriously claim ed th a t T V is to thank or blam e for the defeat of the USA in V ietnam , as a dem ocracy cannot fight wars before open T V -cam eras. However, we do not receive any inform a

tion from the w ar in A fghanistan, and if we do, it will be heavily censored words

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and pictures reflecting the rulers’ interest in concealing »reality«, if it does not suit them.

T he press has therefore been called the fourth power of state besides the legis

lative, the executive, and the judicial power, because it - by spreading information and opinions - enables the authorities to perform their tasks. T his is the reason why freedom of the press in a dem ocracy is extrem ely im portant, whereas it is inadm issible in a dictatorship. Freedom of the press and dem ocracy are the counterparts of the »theory of reflection«, inasm uch as the press ideally takes care of the collection and publishing of inform ation about »reality«, so th at the population is able to size up »reality« and in so doing influence their politicians.

Censorship of the press and dictatorship are on the other hand the counterparts of the »theory of projection«, inasm uch as it is the rulers’ picture of »reality«, which is projected out into society. In a dem ocracy the people elects new leaders, if they lose the people's confidence, whereas in a dictatorship - Bertold Brecht said - the leaders if so elect a new people. By this he ironically m eant th a t the population's consciousness is (deliberately) changed by m eans of the press and the police.

T hus, it is true th at our cognition is dependent on interests, inasm uch as in a dem ocracy we only hear about the things, which somebody takes an interest in investigating and telling about, and inasm uch as in a dictatorship we hear only about the things, which the rulers take an interest in telling about. However, it is true th at also in a dem ocracy the m edia m ay be abused by journalists, who for political or personal reasons are interested in telling or concealing a story or in representing it in a distorted way. Finally, it is also possible - by exploiting the knowledge of the conditions of the press and T V - to m ake a piece of »news«, whose only purpose is to force the press to devote its tim e to a certain case. T he hunger strikes in prisons in N orthern Ireland were a cruel exam ple of this stra tegy; another way to a ttra c t the attention of the press is to seize hostages, a m eth

od which is used very often now adays and all over the world.

However, for a m om ent we have to retu rn to the linguistic treatm ent of reality, for even the T V -m edium is dependent on texts and com m entaries; if it had not been for the texts and com m entaries the cam era lens and its perspectives would alone be decisive of the »reality« th at we see on TV . However, there is an im port

ant fundam ental difference between the linguistic description and the pure pic

torial influence of our consciousness: the linguistic description is worked up in the left cerebral hem isphere, whereas the pictures directly influence the right passive cerebral hem isphere.

In the USA some investigations have been m ade of the function and influence of the TV -m edium on the Am erican social life. These investigations seem to prove

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th at the T V -m edium is well suited for advertising and for political and sim ilar influence. A message can easily be brought into our consciousness: by sending a series of pictures into the right - uncritical - cerebral hem isphere and at the same time cut off the intellectual and linguistic working up - either by sending the pic

tures in very short m om ents or by diverting people’s attention by irrelevant talk.

In fact, it has been dem onstrated th at quite a num ber of children - especially from the m ost unfavourable environm ents - is sent to school alm ost w ithout a language, as they have spent m ost of their childhood w atching T V ; pictures have been sent directly into their non-linguistic right hem isphere, while the lin

guistic left hem isphere has literally been on a holiday. Before the T V -m edium was introduced children had to take care of their own entertainm ent either through activity and play or through reading. - In both cases they would have to use the language, which dem ands an active and critical thinking. U nfortunately, this situation has in the post-w ar era been replaced by a passive, nonlinguistic and thus unthinking entertainm ent, which leaves the children as robots w ithout a language.

And here we face the greatest danger to education in the future and thus to de

m ocracy, which dem ands a high educational level.4) T hus, the fact is th at the T V -m edium in itself - i.e. w hatever the intention - creates an inclination to pas

sivity and especially to a w eakening of the developm ent of the faculty of speech.

C onsequently, the language becomes poor, inaccurate and crude; for instance the language of the m edia seems to lack the sense of proportions.

It is a bad thing not being able to express one’s thoughts quite clearly, because - as the Swedish poet Esaias Tegnér said m ore than 100 years ago - obscure speaking is due to obscure thinking. O r, in other words, if you have lost the abil

ity to speak or express yourself precisely, you will not be able to think clearly.

And if you cannot think clearly, you cannot act rationally.

A population only being accustom ed to w atching pictures instead of using its language and intelligence will be m ore than usually inclined to turn its criticism into general discontent or violence. T he fact is th at violence starts w here the talking ends, and the treshold of tolerance will grow still lower, in case we pas

sively allow T V and the so-called »audio-visual« aids and sim ilar m odern peda

gogics to replace the linguistic analysis and criticism . You m ay go so far as to say th at only w hat you yourself have set down in w riting is correctly understood.

For reality m ust - as already m entioned - be described, w hether we believe in it or not. Even though it exists already - as we seem to think, when we hit our heads against a wall - it has to be translated into words and concepts, before it can be understood by the com puter of the hum an brain. It (i.e. reality) cannot be re

ceived, until it has been translated into the language, to which the b rain is coded.

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If this is not the case, it will go directly into the right cerebral hem isphere, w here it is stowed away w ithout further working up. If the thinking, i.e. the com puter system of our consciousness, shall be able to work up, screen, and criticize our sense data, these have to be described, and preferably as precisely as possible;

otherwise the action program m e will not have the desired effect, i.e. lead to the desired ends with the sm allest possible num ber of mistakes.

Indeed, the language is not ju s t an objective tool translating sense d a ta into electric impulses like TV -signals. It follows from w hat has been w ritten above th at the language is active; when you »describe« reality, you also create it to a certain degree. J u s t as God nam ed the things and in doing so said som ething about their »nature«, we also pu t som ething of ourselves into the things, when we nam e them . For instance the very sam e person m ay be called a »patriot« by some people and a »terrorist« by other people. T he hunger strikes in N orthern Ireland is for instance in a sense a dispute about m ere words, as the im prisoned m em bers of the IRA w ant to be considered as political prisoners, w hereas the British authorities treat them like ordinary crim inals.

O u r political, religious, cultural, and esthetic evaluations will necessarily be reflected in the concepts th at we use about the things, and this is also true of our general needs and interests. A »table« is for instance an appliance to p u t things on, while a »chair« is an appliance to sit on. Those, who have read J o n a th a n Swift’s book »G ulliver’s travels«, will rem em ber the comic situation, w hen hav

ing tied Gulliver the Lilliputs begin to search his pockets and for instance de

scribe a tobacco ja r and a pistol, although they do not know the concepts: snuff

ing and shooting.

In fact there are no »pipes« and »m atches« in »reality«, the sam e is true of

»horses« and »cows«, »woods«, »trees«, »tables« or »chairs«. However, there are some objects, anim als, and constructions th at we »call« these nam es, by m eans of which we are able to think over and talk about such things. T hey are tran s

lated into »general concepts«, which are abstractions from reality, like the figures between 0 and 10, and which therefore can be received by the com puter of the brain, which is coded with those »concepts« in the same way as the calculating m achine is coded with figures.

T he concepts, of which the language consists, are thus the elem ents, of which the thinking consists. T he left cerebral hem isphere is, as m entioned, m eant to make the intellectual and linguistic working up of reality, while the right one popularly perceives picture and screens the proposals for understanding and action, which are the results of the process of thought.

T hus, our whole process of cognition is »linguistic«, in the sense th at we can

not consider anything th at is not translated into language. Therefore, we m ust

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conclude th at »reality« exists and does not exist. T here is an infinity of things and powers in the universe, and it would be foolish to confuse fantasy w ith re

ality. T his was exactly w hat the D anish a u th o r H ans Egede Schack described in the first m odern D anish novel: »P hantasterne« (= T he F antasts) (1857).

However, it is true th at we create our life partly by nam ing it and by con

sidering it. - As language is the condition of h um an culture, it is consequently very im p o rtan t th a t we develop and preserve the language th at we have got as a precious tool, which should be »sharpened« instead of being »blunted«. We m ust realize th at our language is not »objective«, b u t is coloured by our interests and our needs. O n the other hand, our language will lose its value as a m eans of com m unication, if we do not endeavour as far as possible to use the words in the same m eaning. In case of disagreem ent about the realities we should not conceal it - either consciously or unconsciously - by m eans of vague and unprecise lan

guage; instead we should make clear the disagreem ent by analysing the different m eanings of the words.

I f we do not insist on the precision in our language, we shall become either executioners or victims in the struggle for souls, taking place on the political, re

ligious and cultural m arket of opinions. A nd in case the linguistic consciousness is replaced by a world of pictures, like the one on T V , there is a danger th at people will lose their language some tim e in the future. I f this happened they would be defenceless against all those, who for com m ercial, political or religious rea

sons intend to m ake »reality« look in a certain way. T his reality would go direct

ly into their right cerebral hem isphere, w ithout leaving them any chance of self- defence.

W hat young people of today should be told is: Beware of the language. Beware of the »reality«, w hich is presented to you by the w ritten and especially by the electronic m edia. In any case this »reality« consists of m ore or less h ap h azard

»segments« of reality, which are a result of a series of random choices and choices based on interests. T he reality being presented is therefore »fragm entary«, i.e.

incoherent and w ithout proportions. Particularly the T V -m edium is inclined to choose photogenic, d ram atic and personal events, so th at the ab stra ct co

herence, the un d ram atic norm al state and the general social perspective are sup

erseded.

T his being so the already existing difficulty in u n derstanding the com plicated reality will be intensified and give rise to »frustration«, i.e. powerlessness, ag

gression, and violence or passivity. N ow adays we see m any exam ples of fru stra

tion, for instance crim inality, terrorism , protest-m ovem ents, protest-parties and various kinds of action on the one hand, and drug addiction, hippy m ovem ents and a rom anticizing of the rural life and so on on the other.

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I suppose, m any of these features, which form a p a rt of the developm ent since the 1960s, are positive, b u t m any are absolutely negative. And they are not con

nected only with the developm ent in the mass m edia and our description of re

ality, but neither are they unaffected by these things. W e cannot reverse the de

velopm ent and retu rn to the secure reality of the past. However, we m ay try - by cultivating our language and critical sense - to reduce the dam aging conse

quences of the electronic m edia and the popular press, when they appeal to our lowest instincts.

In fact the hum an being is not as bad as people think, and not at all as bad as its reputation.

Notes

1) Karl Larenz’ philosophical strive in his philosophy of science has always been the at

tempt to bridge »positivism« and »phenomenology«. He has stressed the predomi

nant importance of valuations within legal science and legal practice (Methodenlehre der Rechtswissenschaft, 4. Aufl. 1979, p. 193). He has emphasized that description of the circumstances of the concrete case as well as interpretation of the legal rules de

pend on valuations, and that the judicial decision is therefore the result of a decision and not of a logical deduction (loc.cit. Chap. 3 and 4-5). He refers primarily to the

»open« character of the »type concept« (loc.cit. Chap. 6), but stresses that the valua

tions must not go beyond the framework of the »positive legal system«; on the other hand, however, the legal principles are a part of »positive law«, as they are the result of the cultural development within a given political reality (loc.cit. Chap. 6, and Richtiges Recht, 1979, p. 174 ff.).

On all these essential points I agree with Karl Larenz (see Recht und Gesellschaft, 1970; Vertrag und Recht, 1968, p. 90 ff., p. 111 ff.; Typologie und Realismus, in:

Nachrichten der Akademie der Wissenschaften in Göttingen, 1971; Norm und Wirk

lichkeit, in: Rechtstheorie, 1971, p. 1 ff.; Values in Law, 1978, p. 9 ff., p. 29 ff., p. 135 if., and p. 151 ff. (p. 168)).

This article - dealing with the fundamental problems of cognition and description of

»reality« - therefore belongs naturally in a festschrift in honour of Karl Larenz.

2) See Stig Jørgensen, Norm und Wirklichkeit (loc.cit. note 1), in: Rechtstheorie, 1971, p. 1-16; Ideology and Science, in: Scandinavian Studies in Law, 18, 1974, p. 87-107;

(Values in Law, 1978, p. 9 ff., and p. 151-176); On Meaning, Opinion and Argumen

tation, in: Peczenik, A. - Uusitalo (Eds.), Reasoning on Legal Reasoning, 1979, p.87- 94; Hermeneutik und Auslegung, in: Rechtstheorie, 1978, p. 63-72; Law and Society,

1972, Chap. 1 and 4.

3) See to the following, Det lærde Selskabs Publikationsserie, Ny Serie (Ed.: Stig Jø r

gensen) No. 2: Sprog og virkelighed (= Language and Reality), 1972; No. 3: Ideologi og videnskab (= Ideology and Science), 1973; and No. 7-8: Symmetri i videnska

berne (= Symmetry in the Sciences), 1975.

4) See Stig Jørgensen, Demokratiets dilemma (= The Dilemma of Democracy) (12 pa

pers), 1981.

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Basic Norm and Paradox

I. Introduction

T he purpose of this article is to ease the discussion of »the basic norm « having H ans K elsen’s legal philosophy as a starting point, and to show th at ju rists in other spheres have solved problem s of the same kind w ithout m uch difficulty. I shall try to prove th at the problem of the basic norm - which K elsen originally realized - is a logical problem (the theory of condition), bu t by changing his theory (the theory of fiction) later on Kelsen showed th at he had attached a greater im portance to the basic norm than one m ight have expected.

K elsen’s m erits were th at in continuation of K a n t and the logical positivistic theory of science he clarified the epistemological separation of the world of re

ality, which is ruled by the law of causation and the consequent necessity, and the world of norm s, which is ruled by the principle of liberty and the consequent re

sponsibility. H e m aintained therefore th at it is im possible to come from »is« to

»ought« and th at the norm s, including the legal norm s as well, cannot be derived from reality b u t m ust be »im putated under« a higher norm . In order to avoid an infinite regress K elsen introduced a »basic norm « being superior to the constitu

tion and the legal system .1)

M y point is th a t K elsen’s logical condition has a function which goes beyond the logical - or tautological - one, on which any logical system is based. It has like the grounds legitim ating n atu ral law in superior m aterial principles of value also a legitim ating function which as m entioned above appears especially in K elsen’s later change of the status of the basic norm into a »fiction«.2)

It is my opinion th at the later debate has been fixed on this extra-system atic function of legitim ation and thus has been concentrated on the status of these ex

ternal factors, the logical aspect being relegated to the background. In this re

spect it is interesting th at H erb ert H a rt who originally form ulated a general theory about the open character of ideas and concepts and especially legal con

cepts: their »defeasibility« which contained the key to the u n d erstanding of the logical status of »the basic norm « as a tautological condition, later on rejected

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this conception and adopted K elsen’s theory of basic norm , giving the basic norm (rule of recognition) an em piric status, which was no im provem ent in my opinion.3)

As m entioned, ju rists are fam iliar with tautological grounds since for instance it does not norm ally disturb them both m aking the concept of »unlawful« a con

dition of a sanction and conditioning it by the sanction. A lf Ross has actually w anted to regard the idea of rights as a »tool of representation« which connects a

»legal fact« with a »legal consequence«.4)

In the following I shall try to explain in detail the logical coherence between the idea of the basic norm , the paradox problem , and the general conceptual analysis. From a comm on-sense assum ption th at contradictions in the thinking are due to sem antic circum stances, or to be m ore explicit, inaccuracies or uncer

tainties in the linguistic wording, I shall begin w ith some clear exam ples of such sem antic errors and I shall then indicate th at the errors have a m ore fundam en

tal background in the open character of the language and th at the solution of the problem s therefore m ust be found along these lines.

II. Logic, Semantics and Paradox

T he D ano-N orw egian Professor Ludvig H olberg (1684-1754) whose first work published was a textbook of n atu ral law in the m anners of the tim e5) satirized in a num ber of literary juvenile works the religious, political, and cultural ortho

doxy of th at time. In one of his comedies, Erasm us M ontanus, H olberg takes it out on the scholastic m ethod of science which ruled the universities right up to the 18th century.6)

D uring a stay in his hom e village E rasm us M ontanus, a young and ridiculous student, impresses and terrorizes his family and his friends w ith his false syllo

gisms. O ne of the tragi-com ic culm inations of the play occurs w hen he in the following way proves th at his m other is a stone:

A stone cannot fly mother Karen cannot f l y

ergo m other K aren is a stone,

a proof which naturally leads to both sorrow and anger. It does not get better when he proves th at the parish clerk is a cock:

A cock can crow the parish clerk can crow

ergo the parish clerk is a cock

(28)

since it makes the village get angry w ith him w hen the stupid parish clerk gets the sym pathy of the villagers by defending the obvious tru th th a t the earth is flat as a pancake and not - as claim ed by Erasm us - round like a ball.

W ith this loose introduction to the analysis of an im p o rtan t legal theoretical problem I wish to draw attention to the risks of logic. O f course no scientist would com m it the above-m entioned fatal errors w hen applying the laws of logic. But nevertheless it is not quite superfluous to draw attention to the sem antic p rob

lems of logic.

Paradoxes7) m ay be ap p a re n t contradictions, i.e. a logical structure, which seems to force us to assum e opposite things.

T he classic w ording is the C rete E pim enides’ paradox: »All Cretes lie«. He either speaks the tru th and then he is lying, or he lies and then he is speaking the truth! Paradoxes can be reduced to the well-known wording:

»This sentence is false«!

or w ith a bitter-sw eet twist in the stately declaration on the title page of a biblio

graphical work:

»This book contains no m ispirnts«!

However, the latter sentence points out the dissolution of the paradox indicating the sem antic am biguity which is in other cases hidden in the apparently very clear words and ideas.

In other cases it is ju s t as clear according to the coherence th at the paradoxical w ording is due to the fact th at keywords are used in different m eanings. W hen for instance it says in the D anish translation of the New T estam ent (M atthew , C hap. 16, v. 25):

»For the one who will save his life shall lose it; b u t the one who loses his life shall save it.«

T here is no doubt th at »life« m eans »physical life« and »eternal life«, respectively.

It is actually explained (M atthew , C hap. 13, v. 11-13) that parables are necessary to explain the deepest m eaning of the teaching to those who are not already seeing.

I t is also clear th at H olberg’s above-m entioned syllogisms are false because they offend against the rules of logical conclusions partly by inferring from nega

tive prem isses partly by changing subject and predicate. From the sentence:

»You castigate the one you love« we cannot infer th a t we love all the ones we hit.

REASON AND REALITY

Stig Jørgensen