Preliminary Remarks on a Legal Logic and Ontology of Relations

Abstract

By using the words “preliminary remarks” in the title my intention was to express a certain reservation. The reason is that the more one engages in the subject of the logic and ontology of relations, the more conscious and re­served one becomes in one’s statements. My starting premise is that the third Reich has bequeathed to us a legacy of unprecedented arbitrariness in the field of legal practice. For present purposes, the more or less futile question of whether the positivist or a non-positivist approach to law is to blame for this outcome can be ignored. In any event, it seems that a theoretical as­sessment in favour of positivism or non-positivism is not the issue. Atti­tudes at that time were dictated by political needs on the basis of a double strategy: in the case of pre-Nazi laws the strictness of positivist premises and the semantic limits of legal texts were totally disregarded in favour of actual national-socialist aims; on the other hand, in the case of Nazi statutes strict obedience was demanded even when this attitude would imply an overt con­tempt of fundamental principles of justice — a perverse version of positivism indeed. In view of this inheritance, it is only natural that all serious endeav­ours in legal philosophy immediately after the war aimed at overcoming le­gal arbitrariness. Those accustomed to looking at things in the historical perspective should have no difficulty in grasping the historical significance of this endeavour. The complexity of this task is due to the fact that it is neither possible to return to the school of classical natural law, nor is it pos­sible to revive the legal positivism of the 19th century; one of the salient reasons is that both doctrines have proved incapable of dealing with the historical nature of law.