Q&A: Between Positivism and Empiricism
Between Positivism and Empiricism
Question
1. I didn’t understand the difference between positivism and empiricism. Could you clarify?
2. Legal formalism (= formalist interpretation) deals only with what the law says and ignores the reason/rationale/value behind it. By contrast, purposive interpretation interprets the law in accordance with its rationale. In short: do we derive the rationale of the verse/text or not?
A. Why do you see the Briskers’ distinction (we deal with the what and not the why) as an illusion? After all, there are two very different and separate schools in the legal field as well: the formalist one and the purposive one.
B. Legal positivism also deals with the law as enforced by a legal system of people, and ignores natural law, etc. For example, the positivist will ask whether murder is legal or not, whereas the non-positivist (what is that called?) will ask whether murder is ethical or not. Can one infer from this that legal positivism deals only with formalist interpretation of the law?
I’d be happy for clarification, and also for correction if I got something wrong somewhere.
Answer
1. Logical positivism is more extreme than empiricism. Positivism claims that whatever is not sharply defined has no meaning. It also claims that whatever is not empirical says nothing. Empiricism does not claim that it has no meaning, only that it is not necessarily true.
2A. In the legal realm too, this is an illusion. It’s a matter of degree; nobody completely avoids rationales.
2B. I’m not sure I understood the question. Positivism speaks about enacted law, not natural law. Beyond that, it also recognizes only deductive-logical derivation from the law itself (under the illusion that such a thing really exists). There is a connection between these two characteristics, since any interpretation that is not deduction does not extract results from the law itself, but adds the interpreter’s own view.
Discussion on Answer
The opposite of purposive interpretation is literal interpretation. Formalism is a somewhat different matter. Literal interpretation sticks to the wording, but that is not necessarily formalistic.
Hart’s example is discussed in my book on rule and particular case (the second in the Talmudic Logic series). I think formalism ignores other things besides rationales and purposes. But that’s semantics.
Can I ask for clarification on the difference between formalistic and literal?
Here too, is this just semantics????
This is conceptual analysis in the finest sense, isn’t it? I’m really asking to understand these concepts (for their own sake, and also because they help in understanding Brisk theory and the line of reasoning of Rabbi Shimon Shkop).
If you define “formal” for me and define “conceptual,” we can discuss the relation between them. But when you ask for the definitions themselves, that is a semantic discussion.
Got it, thanks.
As for 2B, Hart gives an example like this: suppose there is a sign at the entrance to a public park that says, “No vehicles may be brought into the park.” Now suppose the municipality wants to erect a memorial to the fallen of World War II, made from an old armored vehicle that was used in the war. Is it permitted to bring it into the park for the purpose of building the memorial? A formalist interpretation would say: forbidden, because it contradicts the prohibition stated on the sign. A purposive interpretation would say: permitted, because that is not the purpose of the prohibition.
My question is: is the interpretive tool available to the positivist only formalism? I understood that it is, because the positivist interprets the language of the law and ignores values and rationales, exactly like the formalist, no?