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Between Positivism and Empiricism

שו”תCategory: philosophyBetween Positivism and Empiricism
asked 4 years ago

1. I didn’t understand what the difference is between positivism and empiricism? Can you clarify?
2. Legal formalism (=formalistic interpretation) deals only with what the law says and ignores the reason/reason/value behind things. In contrast, purposive interpretation interprets the law according to its meaning. In short, whether the law has a purpose or not.
A. Why do you see the distinction of the Briscians (we are dealing with what, not why) as an illusion? There are two very different and separate schools of thought even in the legal field, the formalist and the purposive.
on. Legal positivism also deals with the law enforced by a legal system of people, and ignores natural law, etc. For example, the positivist will ask whether it is legal to murder or not, while the non-positivist (what do you call that?) will ask whether it is ethical to murder or not. Can we conclude from this that legal positivism deals only with a formalistic interpretation of the law?
 
I would be happy to clarify and also correct if I made a mistake somewhere.


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מיכי Staff answered 4 years ago
1. Logical positivism is more extreme than empiricism. Positivism claims that what is not sharply defined has no meaning. It also claims that what is not empirical means nothing. Empiricism does not claim that it has no meaning, but that it is not necessarily true. 2A. This is also an illusion in the legal field. We are talking about doses, but no one completely avoids the flavors. 2b. I’m not sure I understood the question. Positivism talks about the law that is enacted and not about natural law. Beyond that, it also recognizes only a deductive-logical derivation from the law (with the illusion that there is such a thing). There is a connection between these two characteristics, since any interpretation that is not deduction does not extract results from the law itself but rather adds the opinion of the interpreter.

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EA replied 4 years ago

I understand, thank you.
As for 2b, Hart gives this example: Suppose there is a sign at the entrance to a public park that says: ‘No vehicles allowed in the park’. Now suppose the municipality wants to erect a monument to the fallen of the World War, made from an old armored car that was in the war. Is it permissible to bring it into the park for the purpose of building the monument? A formalist interpretation would say: It is prohibited, because it is contrary to the prohibition stated in the sign. A purposive interpretation would say: It is permitted, because that is not the purpose of the prohibition.

My question is, is the interpretive tool in the hands of the positivist only formalism? I understood it to be so, because the positivist interprets the language of the law and ignores values and reasons, just as the formalist does not?

מיכי Staff replied 4 years ago

The opposite of purposive interpretation is literal interpretation. Formalism is a slightly different matter. Literal interpretation adheres to language but is not necessarily formalistic.
Hart's example is discussed in my book On General and Particular (the second in the Talmudic Logic series). I think formalism ignores more than just reasons and purposes. But that's semantics.

EA replied 4 years ago

Ash clarification what is between formalistic and literal?

Here too it is semantics ????
This is a strictly kosher conceptual analysis, isn't it? I really want to understand these concepts (for their own sake, and also because they help to understand the Torah of Barsik the logic of the Gershish)

מיכי Staff replied 4 years ago

If you define formal and conceptual, we can discuss the relationship between them. When you ask for the definitions themselves, it's a semantic discussion.

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