Two Nonformalistic Positions: Engisch and Simitis

Abstract

In his essay “The Meaning and Scope of Legal Systematics”, 1957 [13], Engisch attempts to show that there are serious obstacles to the development of a legal system with the aid of the axiomatic-deductive method. So much empirical content is enmeshed in legal concepts, he explains, that they cannot be reduced to a small and closed set of basic concepts, as can mathematical concepts. Moreover, law differs from mathematics not only as a system of concepts, but also as a system of sentences. The main difference is this: in mathematics deduction is “almost the matter itself”, while in law it serves “merely as a conceptual scaffolding” (176). In law every deductive step involves the wielding of so much material that the purely deductive element seems insignificant as compared to the required “cognitive operations”. In sum, there is only “seeming deduction” in law; hence, the scientific ideal of the axiomatic-deductive method cannot be realized in the legal sphere.