This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
We have already suggested that a number of errors in the prevalent opinions regarding the nature of juridical thinking may be explained by the habit of employing none but the methods of the old scholastic logic. We now propose to call attention to some of the most important points of view regarding this matter.
The older form of logic was derived principally from the speculative as contrasted with the empirical sciences. The main characteristics of these sciences are as follows:
1. They do not derive their subject-matter from experience, but either create it themselves by a process of thinking, or at least take it up in a form which has been reduced, by abstraction carried as far as possible, to the simplest component features.
2. As a consequence, the conceptions and ideas with which these sciences deal are exactly defined, so far at least as regards those qualities that are under consideration and in mathematics as regards all their qualities, so that nothing vague or disturbing is encountered.85
It follows that the subject-matter of these sciences is of the simplest nature.86 This is the reason why all mathematical thinking is perfectly exact and precisely consistent. The concepts of mathematics (leaving out of account certain ultimate ideas of the higher mathematics) are exactly defined to the least detail, so far as the details are of importance. In real life there may be all kinds of figures of which nobody can say whether they are circles, ellipses, or irregular lines; for the mathematician such dubious transitions do not exist. He thinks of them as pure circles, pure ellipses. In mathematics every concept is sharply distinguished from all its neighbors.
The older type of logic, dealing as it does mainly with such relations, conceives of all human ideas as sharply defined entities like those of mathematics; it is fond of representing them graphically in the form of geometrical figures such as circles. One of its principal aims used to be to obtain certain ultimate forms'modeled after geometrical relations of space. One of these ultimate forms is that of subsumption, which governs the function of interpretation. The nature of subsumption is this, that the subject-matter of the minor premise is conceived as contained in the subject-matter of the major premise, whereupon the qualities of the major subject are imputed to the minor one. In law, these qualities are the things which the statute provides regarding the subject-matter with which the major premise deals. This operation of subsuming constituted the very life of the older logic; for that mode of reasoning looked upon every idea as something which in its very essence was a schematic representation, obtained by abstraction, i.e. by the elimination of all individual qualities adhering to a group of things belonging to a certain class, and every new thing belonging to the class had to fit into the scheme.
85 E.g. every line, be it drawn ever so finely, has in addition to length a certain breadth, but mathematicians disregard that fact entirely and consider a line as having only one dimension, to wit length.
86 This axiom is very familiar to all who have given attention to encyclopaedic science or philosophy, but has to be explained for all who remember the mathematics of their college days as an exceedingly complicated and difficult science. The latter fact is due to this, that the human mind, even as regards relatively simple phenomena, can take in all their relations with great difficulty only. In order to understand how simple mathematics really is one need but compare it with any phenomenon belonging to a science close to it in the scale of simplicity, such as physics. Pouring out a glass of water is surely a very simple physical occurrence, yet there is no mathematician in the world capable of calculating where and how the various drops will fall. It is possible, in theory, to find an analytical formula representing the form of some actual object, let us say a human countenance; to try to draw up such a formula, however, would defeat the skill of the greatest mathematician. Still more complicated than the phenomena of physics and chemistry are those of biology, but the most complicated of all are psychological and social ones. If we add to this list, between mathematics and physics, astronomy, we shall obtain the well-known scale of Comte.
In this manner the older form of logic built up a body of thought firmly constructed and without internal inconsistencies, but at the same time incapable of being of the least use for the empirical sciences. No scholar, and no human being of any kind, would dream of actually regulating his thinking according to the forms of that sort of logic, as for instance the syllogisms of Barbara Celarent or similar forms. To do so would not only be exceedingly awkward, but in most matters it would lead nowhere; it would amount to nothing but a moving about in a circle of repetitions and circumlocutions. That kind of logic is incapable of dealing with the infinite variety of living thought.
There was need of reform in the science of logic. During the last few decades a movement has begun which aims at creating a form of logic that may be used as a supreme method for the special sciences. The strenuous endeavors in that direction, such as the work of Erdmann,
Sigwart, and Wundt, have by no means accomplished their entire purpose, but important truths have even now been placed in a clear light.87
1. There is first of all the almost self-evident truth that our logical thinking (i.e. the intellect) is not separated, as by a Chinese wall, from other psychological processes, such as willing, feeling, remembering, etc.; instead, there is a constant play of influences exerting themselves from these directions upon our thinking, yet not sufficient to destroy the logical character of thought. These influences are particularly effective in the formation of concepts.
Wundt goes so far as to call the cooperation of the will a direct characteristic of logical thinking. According to him, the formation of concepts without the influence of the will results in nothing but a passive and uncontrolled series of ideational or conceptual associations. The influence of will upon thought takes the shape of an internal act of volition which Wundt calls apperception and which it may be popularly sufficient to call voluntary attention. When this internal act of volition is performed there occurs an active series of states of consciousness. If the will acts irregularly the series may consist of nothing but imaginative representations; or there may be logical thinking, which is characterized by the following: the unification or synthesis of the various ideas and their mutual relations into new ideas. This synthesis has the tendency to obtain a knowledge of the relations of reality. For the purpose of obtaining that knowledge, concepts are the most important products of the synthesis.
87 The account of the matter given in the text, in which I have, in the main, followed Wundt, like this entire digression, does not claim to be exact. It is not written for professional logicians or psychologists, but proceeds in a popular, very much simplified manner. Nevertheless I believe that I have hit off pretty accurately the difference between the older and the new ideas.
It is apparent that Wundt actually makes the will the foundation of all logical thinking. This proposition explains also the influence of emotions upon thinking, even if one does not agree with Wundt in considering emotions as nothing but undeveloped acts of will that fail to become effective.
2. These considerations imply also a new idea of the nature of a concept.
How are concepts formed? Every new mental image also reawakens other images formerly produced, so that there are produced groups of images connected by the thread of memory. The most important kind of these groups are concepts. The process is mainly one of association, but the arranging and eliminating performed by apperception are also factors. The characteristic thing about a concept, by which it becomes of such extraordinary importance among our various states of consciousness, is this, that from the entire group of mental images one image, ordinarily the most distinct one, is selected as the dominant or typical one and made the representative of the whole synthetic product, i.e. the group of images. This image alone appears in the focus of consciousness whenever the whole group is contemplated, while the rest are observed indistinctly. As a result, it is impossible to form a mental image of a concept that will cover its entire logical content, as is shown by Wundt.88 A concept is not a sort of diagram -for a merely diagrammatical image is an impossibility. It is impossible to imagine a triangle neither isosceles nor anisosceles, neither isogonic nor anisogonic nor right-angled, in other words a mere diagram of a triangle. There is always one distinct image which acts as a symbol representing the whole synthetic group, while the other images are connected therewith by association, memory, or other psychological means. According as the representative symbol is near to or remote from the remaining contents of the concept, or as it does or does not add to itself a visualized representation, the concept is concrete or abstract. Very commonly the representative symbol appears before our consciousness merely in the shape of a word, so that, to quote Erd-mann's treatise89 on logic, "we frequently in the course of speech reproduce verbal concepts without becoming conscious of what the words represent." This touches upon another matter which the older science of logic was unable to deal with.
88"Logik." p. 217.
3. Influence of language upon thought. Language, and the body of concepts represented by it, is not merely the instrument by which we think, but directs our thinking into certain paths. I mention this point at this time in passing merely, because a good many other instances in which our logical thinking is affected by social factors become more comprehensible thereby. Thus it is the observation of Sigwart90 that "in all new objects, we always notice most readily those things which agree with a diagram we are already familiar with. We constantly cover things up, so to speak, by our ready-made images and thus conceal from ourselves whatever is new and distinctive in them." Sigwart here uses the term diagram ("scheme"), but it appears from the sentence just preceding that he does not at all use it in the sense of a definitely circumscribed geometrical figure. That sentence runs: "In the natural course of thinking, all words tend to expand their fields. Their boundaries are undefined and ever ready to extend their meaning to new but allied ideas."91
89 "Logik," vol. i, Sec. 8.
90 "Logik." Sec. 7.
91 Comp. Tertullian, "De legibus" i, 2: "Semper hoc legibus inesse credi oportet ut ad eas quoque personas et eas res pertineant, quae quandoque similes erunt."