Abstract

YOSHINO, Hajime. Tractatus Logico-Juridicus - Its basis. Rev. Derecho Estado [online]. 2015, n.35, pp.267-293. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n35.10.

This article provides the fundamentals of Logical Jurisprudence, a theory developed by the author. Logical Jurisprudence is a theory of law which aims at explicating the structure of the thought of law and legal reasoning through the application of the logical point of view and its method. Logical Jurisprudence analyzes and constructs the legal world with three primitives: the sentence, its truth value and the inference rule. Legal inference is the development process of legal sentences where case descriptions, statute provisions, legal principles, interpretation in precedents, supplementary interpretations for the case and legal decisions are extracted or created so that legal decision can be shown as the result of logical inference. Logical Jurisprudence starts with legal sentences which should represent law. Legal sentences as arrangements of signs are inter-subjective and positive because they are actually set through empirical events. Law as the meaning of a legal sentence appears only when it is used by its creator and its interpreter. Law as a meaning does not exist an independent entity. The existence of law as a meaning is the biggest fiction created by jurists. There are three types of alternative fundamental concepts of legal sentences: legal rule sentences and fact sentences, legal elementary sentences and complex sentences, and legal object sentences and meta-sentences. A legal system can be analyzed and constructed with the above fundamental concepts of legal sentences. In order for a sentence to be a legal sentence, it has to fulfill the conditions required for the formation of a legal sentence which is determined by its legal meta-rule sentence. Legal sentences are either valid or invalid. When a legal sentence is valid, it means that the legal sentence is true in the legal world. From the logical point of view, the validity of legal sentence can be seen as truth-value of the legal sentence. Just as only true sentences are to be applied as premises of reasoning, only valid legal sentences are applied as premises of legal reasoning. The person who infers a concrete legal sentence describing his obligation to act (on a certain way) from the applied true premise adopts it as being legally true and consider it seriously to take an action to conform it. Here is the reason of the biding force of law. The concepts of "appropriateness" ("Gültigkeit" in German Language) and "efficacy" ("Wirksamkeit") can be understood from this point of view. Whether a legal sentence is valid or invalid is regulated by legal meta-rule sentences. There is the "fundamental" meta-rule sentence which regulates that a legal sentence "is valid" and which is the top legal meta-rule sentence. Below this top rule sentence, there are legal meta-rule sentences which regulate that a legal sentence becomes valid and it becomes null. Legal meta-rule sentences regulate the validity scope of a legal sentence according to the time, place, the person, facts and legal sentences. Legal meta-rule sentences regulate the validity between legal sentences so that external conflicts between legal rule sentences is not seen as a logical contradiction in practical legal reasoning.

Keywords : Law; logic; reasoning; legal sentences; validity.

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