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Morris R. Cohen on the Place of Logic in Law, Positivism, Deduction, and the History of Science April 18, 2013

Posted by Christopher Donohue in History of the Human Sciences, Philosophy of Law.
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Morris Raphael Cohen (July 25, 1880 – January 28, 1947) is today a relatively unappreciated philosopher outside some encamped circles in the philosophy of law, intellectual history, and the intellectual study of jurisprudence.   Sidney Hook in “The Philosophy of Morris R. Cohen,” in the New Republic, outlined the reasons for this.  He noted, “Honored for his candor, his scholarship and critical insight, his philosophical colleagues with a true gesture of piety to the spirit of intelligent dissent recently conferred upon him the presidency of the American Philosophical Association.” But, “he has no following.”  Hook continuedStray-Dog, “His writings have consequently bewildered those who have sought to understand him only in the light of his negations.”  Cohen had little patience for Marxist or overly sociological discussions of law, but he was not a strident legal positivist.  He did not think that jurisprudence was a closed system of logical relationships as would a legal formalist.  Cohen was however a kind of “reductionist.”   Law was logical, and much like the natural sciences, useful due to its regularity and generality. Law, however, much like the more contemporary sciences of non-Euclidean geometry and quantum mechanics, had to be open enough to address the inherent messiness of life.

Cohen’s writing was relentlessly qualifying, with an almost dialectical quality to his reasoning.  He noted in the  “The Place of Logic in Law,”  “We try to reduce the law to the smallest number of general principles from which all possible cases can be reached, just as we try to reduce our knowledge of nature to a deductive mathematical system.”  Cohen continued, “This rational form also gives the law the appearance of complete freedom from arbitrary will and thus satisfies the modern demand for equality in the enforcement of law.” In practice however, law was often neither systematic nor general.  The law “constantly reveals aspects that hamper or complicate our beautiful analytic equations,” where the “affairs of practical life generate situations which mock our well-intentioned efforts to reduce the law to a rational system.”

Law’s imperfect rationality was essential since law, according to Cohen, must be useful to society.  “In thus endeavoring to make law systematic, jurists are not merely pursuing their own theoretic or scientific interest.  They are preforming a duty to the community by thus transforming the law.”  A “generalized jurisprudence enlarges the law’s control over the diversity of legal situations.”

“Legal principles,” however, “are not so simple or so readily applicable in single cases as are the principles of physics; nor are the facts of the legal order so definite and so rigid as those of the physical order.”  “Crucial experiments” were possible in science and the failure of a theory to correspond to the “facts” led to the utter abandonment of that theory by the scientific community. Physical theories may be continually refined to more accurately describe phenomena.  The “facts of the legal order,” the  body of case decisions and the general principles derived from them, however, “can almost always be disputed and disregarded as entirely wrong in principle.” “Nevertheless,” Cohen concluded, “enough has been said above to indicate that the rule of deduction is not an accidental incident in law and natural science but rather is an essential part of their life.”

Cohen characterized and vigorously defended deduction as a generative mode of reasoning.  He objected to philosophers who considered deduction to be a mere “ornament of exposition.”  Although he believed that the “case method,” where general principles of legal reasoning where induced from specific examples drawn from the experience of the courts, was a common method in legal reasoning,  Cohen argued that many contemporary legal scholars conflated deduction with scholastic reasoning, and considered both as antithetical to modern scientific reasoning.

He countered that though scholastic philosophy had a number of detriments, it was nonetheless clear to anyone who read the scholastic philosophers closely that their reasoning was very clear and consistent.  As importantly, the “founders of modern science” “certainly did not despise deduction.”  Francis Bacon, the great prophet of induction,  Cohen reminded his audience, was a “good lawyer” “but one who made no contribution at all to any natural science.”  The present cult of inductive reasoning arose out of a reaction to the “frenzied excesses” of Hegel and Fichte.

Induction became popularized through J.S. Mill, who was not a scientist but “an administrator” for the East India Company, whose ideas about the natural sciences came chiefly from William Whewell.  However, “the actual procedure…of natural as well as of legal science involves constant reliance on principles, and is incompatible with Mill’s nominalism, i.e. the assumption that only particulars exist in nature.”  This is a good point about Mill. He was an economist as well, something that Cohen does not mention, but this is a quibble.

Interesting too is Cohen’s critique of pure theories of law.  “All metaphysical philosophies of law…which pretend to have no empirical elements at their basis, thus really attempt the logically impossible.”  Cohen continued, “all metaphysical philosophies of law do smuggle in…the main material facts of the social order.”  However, abstract theories of law were frequently, due to the essential sameness of human nature, more beneficial to the progression legal science than sociological accounts of laws plagued by too-intricate discussions of legal specificity.  Legal theorists, however, should attempt at all times to avoid the perils of oversimplification, or making legal theory too remote from the complexities of everyday life.

Legal principles, finally,  such as those reflecting truths of human nature, should not be arrived at due to their “immediate self-evidence, but because of the system of consequences that follows from them.” Thus, the law, like the contemporary sciences,  should be principled, logical, and coherent, whilst still being flexible and pragmatic.

Cohen’s discussion of the place of logic in the law presents his ideas in all of their almost frustrating complexity.  Cohen was neither a legal positivist nor a legal relativist.  He considered law to be like the natural sciences, but not always so (and more like the modern natural sciences than their early modern ancestors.)  He discounts the purity of rationalistic theories of jurisprudence like John Austin’s while also maintaining that they do better work than sociological theories of jurisprudence.  He was then very much like Oliver Wendell Holmes, Jr.  in his attempt to steer a course between philosophical absolutes, but unlike him in his ability to satisfactorily resolve them.

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