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Brecht - Myth of is and Ought

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In thins 1941 article from Harvard Philosophy Journal, the author critiques the commonplace view of the "naturalistic fallacy" of "is" and "ought".

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Page 1: Brecht - Myth of is and Ought

Citation: 54 Harv. L. Rev. 811 1940-1941

Content downloaded/printed from HeinOnline (http://heinonline.org)Fri Feb 28 09:49:00 2014

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

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THE MYTH OF IS AND OUGHT

THE MYTH OF IS AND OUGHT

THE DOCTRINE OF SEPARATION

U P to the end of the nineteenth century, Natural Law theoristsin political and legal philosophy evolved their concepts of

what ought to be from the factual what is. Human beings are,therefore they ought to be. They are born as equals; thereforethey ought to be treated as equals. They have a natural impulseto preserve their lives; therefore they ought to have a right of self-defense. Society exists, and is useful to the maintenance of lifeand to self-defense; therefore, there ought to be society.

The opposition to Natural Law which came to a climax at thebeginning of the present century was partly based on the conten-tion that no postulate in the world of ought could logically be de-rived from any statement in the world of is. The fact that humanbeings exist does not logically justify the conclusion that theyought to exist, any more than does the fact that there are man-eating sharks logically justify their existence. Nor can the factthat there is society and a state of mutual dependence among itsmembers demonstrate, as has been maintained even in this centuryby Duguit, that we ought to fulfill our function in society.' Onlythe corresponding premise that there ought to be society, or thatsociety is ethically desirable, may logically justify such a con-clusion.

This insistence on logical accuracy has far-reaching conse-quences because of the fact that, while it is often relatively easy toverify propositions in the physical or biological world of is, it re-mains doubtful to what extent, if at all, it is possible to present any" transmissible " or " communicable " proof 2 about propositionsin the world of ought, if logical derivations from facts in the worldof is are barred a priori as fallacies.

The doctrine of rigid separation of is and ought has generally1 DUGUIT, L'%TAT, LE DROIT OBJECTIP ET LA Loi PosrrIvE (go). This has

been translated: Theory of Objective Law Anterior to the State in 7 MODERN LEGALPHmosopny SERIS (1916) 235, 258, 290.

2 Throughout this paper, the term "proof" is used in the broader sense, includ-ing immediate obviousness, and the adjective "transmissible" or "communicable"to denote the additional quality of intersubjective communicability.

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been combined with the thesis that even moral values form nobridge between them. Values, it has been said, do not exist asfacts in the realm of is, though evaluations, of course, are mattersof fact. While values as such cannot " exist," qualities which areconsidered valuable, such as altruism, fortitude, or patriotism, mayof course have existence. Anything may be demonstrably valu-able in the sense that it is useful as the means to some end, butthis does not prove the unconditional value of the means unlessthe value of the end is also demonstrated. Whatever may be thecorrect place of values in the study of truth and in the study ofaesthetics or beauty,' ethical values (or the good) are at any rateclosely tied up with the world of ought. Only that is of ethicalvalue which ought to exist, be done, or approved.

It is a truism of formal logic that deductive conclusions of theought-form cannot be drawn solely from premises of the is-form,but only from two premises one of which also has the ought-form.All human beings ought to have the right of self-expression; Doe isa human being; therefore Doe ought to have the right of self-expression. However, people do not often think in terms of formalsyllogisms. Short cuts which omit the ought premise have, there-fore, crept not only into daily parlance but also into literature,legal and philosophical. In objecting to such analyses, proponentsof the doctrine of the separation of is and ought have called to ourattention only old and established principles of formal logic.

The matter is less obvious if one turns to inductive conclusions.In order to establish a major premise of the ought-form, referencesto statements in the is-form have been advanced even by greatthinkers. The doctrine of separation protested against not onlydeductive but also inductive short cuts. There is, as some have ex-pressed it, an " unbridgeable gulf "between is and ought.'

8 Seep. 815 infra.4 See KE.LsEN, IhBER GRENzEN ZwIsCHEN JUESISCHER UND SozIoLoGIscHER

METHODE (91ii) 6: "The contrast between Is and Ought is formal and logical andas long as one keeps within the limits of formal and logical considerations no roadleads from one to the other; the two worlds confronting each other are separated byan unbridgeable gulf. Logically the question as to the "why" of some particularOught can only lead to some other Ought, time and again, just as the question as tothe "why" of some Is can only receive as an answer another Is, time and again."Lask, Rechtsphilosophie in 2 DiB P~nmosopr . 3m BEaoNN DES ZWANZIGSTEN JA3R-n-mDERTs (igo5) (hereinafter cited as LAsx) ii, used the same metaphor for thedifference between is and meaning.

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This "methodological dualism," has greatly influenced twen-tieth-century political and legal philosophy. It has been voicedfrequently as an argument against any attempt to distinguish byscientific procedure " good" from "evil" in policy and legisla-tion. Having, according to this doctrine, no logical foothold inthe realm of is, one must, in order to demonstrate that specificends are "good" or " evil," always refer to some higher principlein the realm of ought. Scholars in politics and jurisprudence,then, have been encouraged and even forced to work from funda-mental assumptions regarded as arbitrary in the scientific sense-i.e., posited or chosen, but not proven. They have been in agree-ment, it is true, in assuming that such phenomena as individuals,family, society, science, and art, " ought to be." With respect tosuch controversial details as the order of rank among these andother values, however, scholars have been left to make their morespecific assumptions individually or by groups. The most radicaloutcome in the political and legal field was a positivism whichassumed the validity of the working constitution of any country(or of a fictitious " basic law" which established the validity ofsuch constitutions), and deliberately ignored all problems tran-scending such positive law.' Those who refused to keep within theboundaries of this positivism and concerned themselves with theformation of policy and legislation, or with problems of justicetranscending traditional concepts, were allowed to choose theirbasic assumptions in the realm of ought according to some self-consistent creed, traditional or revolutionary, or to adopt an atti-tude of neutrality towards all creeds. But where their attemptsto prove the validity of such assumptions purported to be scien-tific, they were scoffed at from the outset. There is even lesslikelihood that positivists will approve the attempt at a scientific" proof of first principles" in the realm of ought than that theywill approve the fusion of scientific methods with subjective as-sumptions. The result has been " scientific relativism," on the oneside and " unscientific dogmatism" on the other.6

5 Best exemplified by Kelsen's Vienna school of the pure theory of law. Seenote 4 supra, and note 13 infra.

6 See Brecht, Relative and Absolute Justice (1939) 6 SocI.L REsEARC 58-87;The Rise of Relativism in Political and Legal Philosophy, id. at 392-414, The Searchfor Absolutes in Political and Legal Philosophy (1940) 7 SOcIAL RESEARCH 201.

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THE ORIGINS OF THE DOCTRINE

It is important to realize at the outset that the doctrine of sepa-ration, in its present rigidity, is of rather recent origin. To someextent, it is traceable to Kant's Critiques of "pure reason," deal-ing with the is, and of "practical reason," dealing with the ought.But although Kant separated is and ought as objectives of knowl-edge, he also offered a connecting link. Inaugurating a new epochin philosophy, he contended that certain a priori factors, such asthe forms of time and space, and the category of causality, werealways present in the human process of thinking. These elementsof thought, therefore, seemed to have is-character. So, to someextent, did Kant's "necessary regulative ideas," such as the ideathat it is inevitable that one thinks of the world as a unity, and his"categorical imperative." ' Hence the fusion of is and ought wasnot halted by Kant, and it prevailed through the nineteenthcentury.

Due, perhaps, to Kant's dominant influence, further discussionof the doctrine of separationism centered in Germany. In 1882,Wilhelm Windelband, leading figure in a Back-to-Kant movementto which he tried to give a progressive turn, reemphasized thecontrast between natural laws (is) and norms (ought).' Heascribed an ought-character to ultimate norms not only in ethicsbut also in logic and aesthetics. But even he failed to delve intothe logical implications of the basic distinction between is andought. Indeed, the ease with which he assumed the "necessaryand general validity" of ultimate ought-norms in all three fieldsis rather astonishing to the present-day reader. Once these as-sumptions were made, there followed apparently an ill-definedsort of link between the realms of is and ought.

About the turn of the century, neo-Kantians in Marburg andHeidelberg took up the basic dualism. Among them was Windel-band's former pupil, the Heidelberg philosopher Heinrich Rickert,who was concerned less with the line between is and ought than

7 See notes 17 and is infra. Other of his regulative ideas could be said to havemere ought-character (Aufgabe) even when thinking was focused on the world of is.

s Windelband, Normen und Naturgesetze (1882) in 2 WNDELBAND, PRXLUDIEN

(5th ed. 1915) 59; Geschichte und Naturuyissenschaften (1894) in id. at 136; Oberdie Gegenwdrtige Aufgabe der Philosophie (i9o7) in id. at i, 19 et seq.; see also hisaddress on Kant, Nach Hundert Jahren (i9o4) in i id. at 147, 16o, 161, 166.

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with the distinction between is (reality, existence) and meaning(or value). Reality and meaning, he said, are distinct realms notto be confused, since meaning as such is non-real and non-exist-ent, although possibly "valid" or" invalid." Whether there wasa "third realm," where reality and meaning fused, was an issueof metaphysical speculation, not of knowledge. Accordingly, hecontrasted natural science (reality) and cultural science (mean-ing).9

Now, meaning (value) is a concept broader than ought. Everyought incorporates some meaning, but the converse is not neces-sarily true.' As Rickert explained, the ought " is a specific way inwhich some values appeal to our interest and cause it to re-spond." " Involved as he was in the more general discussion be-tween is and meaning, he again did not concentrate on the distinc-tion between is and ought. 2

To this day, the discussion of these problems in general philoso-phy, as distinct from ethics, political and legal philosophy, hasbeen greatly hampered by the customary combination of logical,aesthetic, and ethical values, not all of which necessarily have thesame kind of connection, if any, with the realm of ought. Ethicsand political and legal philosophy were free from this entangle-ment, for scholars in these fields could concentrate on moral andlegal values of the ought-character, values related to the goodrather than the true and the beautiful. This may explain why thestrict doctrine of the separation of is and ought was finally ad-vanced in these special branches rather than in general philoso-phy."

9 Rickert's views are now available in his SYSTEM DER PHILOSOpHTE, ERSTERTEl: ALLGEmENE GRuNDLEGUNO DER PnLOSopMM (1921) (hereinafter cited asRICKERT) Ioi et seq. His main contributions were presented earlier in DER GFxF-STAND DER ERKENNTNIS (1892) and DI GRENZEN DER NATURWISSENSCHAFICHEN

BEGRnFSBILDUNG (1902; 5th ed. 1929). Windelband, convinced a priori, as he was,of the general validity of values, considered it a paradox to call the valid value "un-real"; see his EINLErIU IN DIE P oILOsopum (1914) 212, and Rickert's reply,RICKERT 136.

1o Rickert himself held that the ought-form was not restricted to the categories ofthe "good" but that we also ought to acknowledge truth. DIE GRENzEN DER

NATURWiSSENSCnAFrLICHEN BEGRIFTSBILDuNG (1929) 604.11 RICKERT 116.12 Nor did his pupil, Lask. See LAs 11, 31.1s Thus, Simmel in his early work on ethics declared: "There is no definition

of Ought." Pp. 8, 99. "Jurisprudence can prove the justice of its higher principles

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Several writers have tried to adjust the two overlapping dual-isms of Is vs. Ought and Is vs. Meaning. Science can deal, theyhave said, either with "nature, free-of-values" (is), or with"norms, free-of-nature" (ought), or finally, with "nature, re-lated-to-values," that is, nature endowed with meaning. Man-made nature, or culture, such as an engine, a cathedral, or a legalcode, carries a reference to values in itself and can be understoodonly by looking to this reference. Accordingly, they have dis-tinguished natural science, normative science, and cultural science,accepting Rickert's term for the third category." But this dis-tinction, although leading to a triadism of methods, has not weak-ened their opposition to the short-cut reasoning that derives uni-versal conclusions in the world of ought from premises in theworld of is.

only by demonstrating that they are the logical consequence of ultimate principleswhich must simply be assumed as right and cannot be proved to be so." P. 14."The logical conclusion from what is, to what ought to be is false in every case."P. 72. I Snm=rL, EINLEITUNG IN DIE MORALWISSFNSCHAFr (1892) c. I. Kelsenadvanced the most elaborate vindication of the doctrine. See especially four of hisshorter essays, namely, UBER GRENZEN ZWISCIEN JURISTISCHER UND SOZIOLOGISCHER

METH OD (19xi); Naturrecht und Positives Recht (Czechoslovakia, 1927) 2 REVUEINTERNATIONALE DE LA TfEORIE Du DROIT 71-94; Die Ideen des Naturrechts (Oster-reich, 1928) 7 ZEITSCUirx FOR OFFENTLICHES RECHT 221; and Die PhilosophischenGrundlagen der Naturrechtslehre und des Rechtspositivismus in 31 PHIaIosoPmcHImVORTRAGE (Kant-Gesellschaft 1928). See also The Pure Theory of Law (1934) 50L. Q. REV. 474, (I935) 51 L. Q. REv. 517. See also Max Weber, Der Sinn der'Wertfreiheit' der Soziologischen und Okonomischen Wissenschaften (1917) inWEBER, GESAiELTE AuxsiTzE ZUR WISSENSCIIAFTSLEBRE (1922) 451, 480, 498,5oi; RADBRUcH, GRUNDZUGE DER RECHTSP ILOSOPHIE (1914; 3d ed., under titleREcHTsPHILosoPHIE, 1932) 7, 9; HoRVAk, RwcHTssozioLooE (1934) 49 et seq.;Kantorowicz and Patterson, Legal Science-A Summary of Its Methodology(1928) 28 CoL. L. Rv. (hereinafter cited as KANTORowicz) 679, 683, 684.

Anglo-American literature has paid less attention to the problem. Even Relativ-ists like HAZDANE, Tx RrIGN OF RELATIv T (1921), except for one vague allusion(" what ought to be and what is tend to come together ") [p. 357] and WESTER-

mARCx, ErmcAr. RELATnY (1932), do not mention it. The former bases hisrelativism on physico-philosophical reflections, the latter [pp. 60, 288] on the factthat "the predicates of all moral judgments, all moral concepts, are ultimatelybased on emotions, and that ... no objectivity can come from an emotion."There are "no moral truths." But even here, some have admitted the need forseparation. See Llewellyn, Legal Tradition and Social Science Method in ESSAYSON RFsEcn IN Hm SOCIAL SCIENCES (1931) 98, ioi; RICE, QuANTnVE METHODIn PorrIcs (1928) 15. FULLER, THE LAw IN QUEST OF ITSELF (1940), deals criti-cally with the doctrine of separation in relation to a specific question.

14 See RADBRUCH, op. cit. supra note 13, at 25; Kantorowicz, Staatsauffassungen(Deutschland, 1925) I JAHRBUCH I-OR SOZIOLOoIE IOI; KANTOROWICZ; RICKERT

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THE DocTRiNE's VULNERABLE POINT

The proponents of the separationist theory have, as a rule,chosen their illustrations from the external world (things supposedto be outside of the mind), emphasizing that premises based onwhat happens there do not yield conclusions as to what ought, orought not to happen. The question of whether this protest is fullyjustified for the external world, may here be left open. 5 Even ifit were entirely true there, in the internal world it may not be so.

It may, indeed, be contended that if, without any previous clas-sification of methods, we observe our inner processes closely, wecan ascertain within ourselves some natural or biological is - an"inner voice "or" urge " - which directs us toward some ethicalought. This " inner voice "might order us to be good, or reveal tous some hierarchy of values, placing, for instance, unselfish aboveselfish actions. In short, some ethical ought might have its an-nouncer in some is. This link between is and ought, it is true,would be factual rather than logical in character. But the substi-tution of a factual link for the missing logical link would make thelogical doctrine of separation more or less irrelevant. Should weobserve the factual link in a sufficient number of individual cases,an inductive conclusion as to its universal presence would be aswell- or ill-founded as any other inductive conclusion.

Analytically, this was the basis of most natural-law theories -

tacitly if not always articulately. It was assumed that imbeddedin the is make-up of our human nature is some ethical Thou-Shaltor Thou-Shalt-Not, whether there injected by nature or by a super-natural power.'" These theories, it is true, were discredited by thefact that their fruits were either ambiguous tautologies (e.g., just=suum cuique) or, when more concrete, conflicting in the variety of

149; RICKERT, KuLTuRwssiENscA uiND NATURWISSENSCmAFr (1899; 6th and 7thed. 1926); LAsx; WEBER, WIRTSC.ATT uND GESELLSCHALr (1922; 2d ed. 1926) 3;cf. HORVATia, op. cit. supra note 13, at 54. The present writer would even go furtherand proceed to a tetralism of methods, adding "norms, related-to-nature" as afourth category, where science deals with the cultivating of nature (through normsgiven to human beings by themselves or somebody else).

15 The present writer, however, agrees with many others that what is impossiblecannot be the objective of an ethical postulate. See The Impossible in Political andLegal Philosophy to appear in the March, 194i issue of the California Law Review.

16 Even when this was questioned, God's command was still accepted as a fact,and thus is and ought were linked again.

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oughts that resulted from inner observation. But this is not fatalto the thesis that some nexus between is and ought may exist inhuman nature. This idea was forcefully iestated in new terms byKant, who found the moral law imbedded in our very being as a"categorical imperative" of absolute certainty."

Even though Kant may have overshot the mark with this im-

perative and its formulation, 8 his general doctrine, that there arenecessary elements in human thinking, would still stand and wouldintimate the existence, or at least the possibility, of some definitelink between is and ought. This link would be stronger still if thesenecessary elements could be shown to have their parallel in theemotional sphere. Brentano 9 and Windelband 0 suggested, with-out detailed analysis, that such was, indeed, the case.

A NEw METHOD OF ATTACK: PHENOMENOLOGY

Hope of more precise findings in this connection was offered by

twentieth-century phenomenology. Under the name of "tran-scendental phenomenology," Edmund Husserl and his followersadvocated a new method of inner observation.2 ' They insisted

17 " Moreover, the moral law is given, as it were, as a fact (Faktum) of pure

reason of which we are a priori conscious, and which is apodictically certain, evenif no case in which it was strictly obeyed could be ferreted out in experience."Kant, Kritik der Praktischen Vernunft in 5 GESAa-mELTE SCHRInIEN (Academy ed.191o) 47, also to be found in 5 KANT, WERKE (Cassirer ed. 1922) 53. "The objectivereality of a pure will, or, what is one and the same thing, of a pure practical reason,is given in the moral law a priori, as it were, by a fact (Faktum) ; for it is thusthat we may designate a determination-of-will which is inevitable, although it doesnot rest on empirical principles" id. at 55, to be found in 1922 edition at 62. (Trans-lation and italics supplied by the author).

Is " Act according to that maxim only by which thou canst will at the same timethat it should become the universal law" or "So act as if the maxim of thy actionshould become, by thy will, the universal law of nature." Grundlegung der Meta-physik der Sitten in 4 id. at 421, to be found in 1922 edition in volume 4 at 279.

19 Brentano, Vomr URSPRuNG SITTLICHR ERKENNTNIS (i889) 6, 20 et seq.20 See note 8 supra.21 See HUSSEaL, IDEEN zu EINER REINEN PHXNOMENOLOGIE UND PXiNOaMO-

LOGISCHEN PHILOSOPRIE (1913; 3 d ed. 1928, trans. by W. R. Boyce Gibson under

the title of IDEAS: GENERAL INTRODUCTION TO PURE PHENOMENOLOGY (1931)) (here-

inafter cited as IDEEN) ; HussERL, NACHwORT (1930) ; Husserl, Philosophie als StrengeWissenschaft (Deutschland, igio) i LoCos 289--341; HussanL, FORmALE urDTRANSZENYENTALE LocIK (1929) (hereinafter cited as LoGiE); HussEarL, MinrrA-

TIONS CART iSIENNES (193) (hereinafter cited as M1DITATIoNs); Husserl, Die Krisisder Europdischen Wissenschaften und die Transzendentale Phiinomenologie (Yugo-slavia, 1936) I PRILOSOPA 77-176; also the more basic examinations underlying

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that it was possible to recognize and state with absolute certaintycharacteristic elements in our observing, feeling, and willing. Dif-fering from most of his followers, Husserl took great pains to beexact in singling out these elements. Basing his research on arigorously descriptive method,22 and discarding speculation andeven psychology in the usual broad meaning of the term, he accu-rately pointed out what can be discovered by refined inner obser-vation (in an "immanent" way) after we have eliminated(" bracketed ") from direct attention all external (" transcend-ent ") elements. In applying this method (" transcendental-phenomenology reduction "), he traced the ultimate elements ofexperience to certain active (" intentional ") performances of thesubjective ego. Through these performances, he said, the egomarked off (" constituted ") the inner objectives of attention -for instance, some individual "real" thing, taken as existent; oran object of pure imagination, taken as such - and acted uponthese objectives in several characteristic ways (such as perception,remembering, reflection).2 This method led ultimately to the"transcendental subjectivity" of the ego,24 and Husserl called foran investigation of its structure and characteristics.

In the pursuance of his purpose, he introduced several new tech-nical terms. He especially coined the technical term " Wesen,"or as an alternative the Greek " eidos," to denote objectives of in-ner observation that are not individual things but characteris-tics, or essentials, common to a group of individual things, e.g.,"sound" or" color." That Wesen, he said, is no mere verbal no-tion, or conceptual universal. It can be the actual objective ofhis later works: HUSSERL, LoGIscHE UNTERSUCHUNGEN (I900 et seq.; 3d ed. 2922).

Recent American literature: Kaufmann, In Memoriam Edmund Husserl (2940)7 SoCIAL RESEARCH 61, with bibliography; FARBER (El.), PHmosoPHicAL ESSAYS nvMEMORY OF EDnmD HUSSE L (1940) ; and the new quarterly, PmLosoPmy AND

PmN2rowENoLoGicAL REsEARcH, especially Farber, Edmund Husserl and the Back-ground of his Philosophy (1940) 1 id. at 1-20.

22 See IDEEN 112, 290, 3oo. The distinction of transcendental phenomenologyfrom customary psychology, which takes the existence of the world for granted andincludes the ego of flesh and blood in its subjectivism, is most emphatically drawnin LooIK 222 et seq. and MIDITATIONS 26, 27, 122 et seq.

23 LOGIx 226, 244; MWDITATIONS 23 et seq. This reduction was by no meansto exclude transcendent origin. See Loolx 222, regarding God in the light of thephenomenological reduction.

24 LoGnC 239, 240; MEDrATIONS i et seq., x6 et seq., revealing Husserl's prog-ress beyond Descartes, who was not consistent enough in excluding the external.

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immanent attention, as well as can the individual things them-selves. Inner attention may shift at will from a" something "pre-senting only the general characteristic features, to a more particu-lar something, as an illustration, and vice versa. He called thetransformation of particulars into Wesen the process of "idea-tion" or "eidetic reduction." But he was desirous of excludingany connotation of "mystical " beings or "reality " of ideas inthe Platonic sense."5 To him, his presentation was fundamentallya mere description of the way in which we may be "conscious ofsomething." 26 So was his distinction between the immanent actof observing and the immanent objective being observed.

Husserl's refined phenomenological method gave new impetus tothe hope of finding some elements of absolute certainty in theethical world, although he hardly more than hinted at this possi-bility in his writings. In his Ideen, in particular, he failed to in-vestigate a single ought, except for a short remark to the effectthat "theoretic " truth finds its analogy in "axiological " and"practical" truth, that is in the field of emotion (value) and voli-tion, but that all the elements of these "utterly difficult and far-

25 For the foregoing, see IDEEN 8 et seq., 12, 40. "What is invariant in all ex-amples and illustrations is Wesen.' LOGrE 219. Tracing the ultimate source ofexperience to the "productive intentionality" of the ego, Husserl investigates theconstitutive function of the forms in which the ego perceives Wesen. Id. at 222,

226 et seq. (also on the progress beyond Hume and Kant). Cf. MiDrrATiONS 58et seq., where he also uses the term "type" as an explanation.

26 It was most unfortunate that this ardent advocate of accuracy should haveemployed that most inexact term, Wesen, for his legitimate purpose. The Germanmeaning of Wesen runs all the way from "any being" to "mystical being" and"phantom "; from a mere "something" or "entity" to "characteristic and essen-tial features" and "essence "; from any idea mentally formed to a "ghostlike in-corporation of an idea "; from "meaning" and "signification" to "significance."Although Husserl was quite definite in excluding all the mystical connotations[IDEEN 40], I may call attention to the fact that he used the term in at least athreefold meaning. Sometimes he employed it as the equivalent of essence in thedaily usage of that term (aggregate of characteristic or essential features or proper-ties), where it does not allow of the plural form in German; and sometimes as thetechnical denotion of the "something" that constitutes this essence in our immanentobservation (supra), in which case he used it also in the plural. This plural form,in German freely employed for Wesen as phantoms, mystical beings or other ill-defined agents, is especially suggestive of erroneous connotations. Thirdly, in hislater writings he sometimes equated Wesen and a priori. LoGIX 211. This equa-tion makes little sense if the term Wesen is understood to cover any subjective isola-tions of essentials (even in purely imaginative appearances). It seems rather to sug-gest a more restricted use of the term.

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reaching problems" are still in need of basic examination. 2' De-

spite these sober and cautioning remarks, the movement wentahead, supported by the vague connotations of the terms" Wesen"and "Idea."

THE QUEST FOR OBJECTIVE VALUES

It has accordingly been contended by several of the modernphenomenologists that it is possible to ascertain moral values byphenomenological methods. This view has, as a rule, been com-bined with a denial that every moral value is the mere reflectionof some ought. Moral values, it has been said, give rise to moralduties, not vice versa; they do" exist "; they can be" perceived ";they are "felt." 28 Indeed, Max Scheler and Nicolai Hartmannhave put forth elements of an absolute hierarchy of values whichthey considered as being fully supported by immediate evidence.29

27 IDEFN 29o-9i, acknowledging his indebtedness to BENsrTeAo, Vom URSPRUNG

Srrucxa ERXENNTNIS (1889). Husserl is said to have gone more into the detailsof this side of the matter in his unpublished lectures on ethics. Lessing's Studienzur Wertaxiornatik (Deutschland, z9o8) 14 ARcmv FOR SYSTEMATISCHE PEaLOSOPHIE

58-93, 226-57, which lean on these lectures are, however, not regarded as reliablereflections of Husserl's views.

28 Scheler, Der Formalismus in der Ethik und die Materielle Wertethik in 1, 2

JABRBUCH YUR PHnOSOPMiE UND PEXNOMENOLOGISCHE FORSCHUNG (I913-I916;

3d ed. 1927) (hereinafter cited as Foarrws m-s), where he opposed his substantialethics of values to the formal ethics of Kant; HARTmAw, Ecr, (2 vols. 1926;translated in 3 vols. by S. Coit, 1932, under the title of ETmcs) ; Von Hildebrand,Sittliche und Ethische Werterkenntnis (Deutschland, 1921) 4 JAHRBUCH rUR PHI-

LOSOPHIE UND PHRNOMENOLOGISCHE FORSCHUNG 162 et seq.; SPIEGELBERO, ANi-RELATIVISs!US (1935) 48, 89; and other phenomenologists. The following typicalquotations are from r HAR1mANN, ETmcs (1932): Values "have self-existence"and "subsist independently of the consciousness of them." P. 218. "Knowledgeof values is genuine knowledge of Being." P. 219. "In this 'beholding' of them[values] the subject is purely receptive; he surrenders himself to them. He seeshimself determined by the object, the self-existent value; but he himself, on hisside, determines nothing." P. 219. "There is a realm of values subsisting for it-self . . . capable of being grasped." P. 226. "The sense of value is not less ob-jective than mathematical insight." P. 227.

29 FoimAm smus 94 et seq.: Values are higher than others if they last longer; ifthey lose less by the sharing of others in them; if they depend less on other values(this criterion was reversed by Hartmann) ; if they give a deeper satisfaction; andif they depend less on a specific-value sense. 2 HARTmANN, ETMCS (1932) 6o:"Objective existence of gradation," it not being "in the power of man to changethis gradation "; 65: "The historical relativity of morality cannot rest upon thatof values but only upon that of discernment." He tried to refine Scheler's classifica-tion for moral values. Pp. 54 et seq., 385 et seq., 389.

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This almost Platonic turn towards the existence of objective valuesgoes far beyond a strictly phenomenological statement in Husserl'ssense; yet phenomenological observation served as an intermedi-ate step."0

The thesis that value, whether or not defined as an ought, is atleast partly independent of the subjective judgment in the indi-vidual case, has been stressed by many besides the modernphenomenologists.3' One of the most convincing arguments ad-vanced in favor of the objective-value view has been the conten-tion that in certain fields, such as aesthetics, value judgments quiteobviously assume different levels according to the quality of theevaluating personality, and that the faculty of evaluating can beimproved by education and experience. It is evident, too, thatmany individuals have a certain degree of "valuing blindness,"and that almost everyone will experience, during his lifetime,changes in his evaluating ability.32 The objective validity of theo-

So 2 HARTMANN, ETHICS (1932) 63: '" In the phenomenon of preference we have

an accompanying knowledge of the relative height of value; but this accompany-ing knowledge has not the form of a criterion; it is not an ever-ready standardof unity by which we can measure and test. .. ."

81 For example: Brentano: VoM URSPRUNG SITTLICHER ERXENNTNIS (1899);

Windelband: op. cit. supra note 8; 2 PRXLUDIEN (5th ed. i915) i6i, 295; WINDEI.-BAND AND HEmmsOETH, LEHRBUCH DER GESCHICHTE DER PHILosoPHIE (1935) 596;

Rickert: RICxERT 134 et seq.; op. cit. supra note 9; Meinong: Fuir die Psychologieund gegen den Psychologismus in der Allgemeinen Werttheorie (Deutschland, 1912)3 LOGOS 1, 9; Moore: PRaNcn'iA ETHICA (I903) 118; Rashdall: i THE THEORY OFGOOD AND EVIL (1907) x66; Bosanquet: THE PRINCIPLE OF INDIvIDUALITY AND VALUE(1912) 291 et seq.; Sheldon: The Empirical Definition of Value (1914) ii J. OF

PHILr. 113, 122, 123; Urban: Value and Existence and Knowledge of Value and theValue Judgment (1916) 13 J. OF PIatO. 449, 673, 682; Ontological Problems ofValue (1917) 14 J. OF PHILO. 309, 317, 329; Hocking: Outline Sketch of a Systemof Metaphysics in FARBER (ED.), PHILOSOPHICAL ESSAYS IN MEMORY OF EDMUNDHUSSERL (1940) 251-61; PRESENT STATUS OF THE PHILOSOPHY OF LAW AND OF RIGHTS

(1926) 74 et seq.; Laird: THE IDEA OF VALUE (1929) 182, 240 et seq., 317 et seq.;Garnett: RxALr=r AND VALUE (1937) 154 et seq., i79, i8o; Ross: FoUnrATIONS OFETHIcs (1939) 83 et seq., 167 et seq., I88. See also Perry: GENERAL THEORY OFVALUE (1926) 27, 77 et seq.; Felix Cohen: ETHICAL SYSTEMS AND LEGAL IDEALS(I933) i5; Fuller: THE LAW IN QUEST OF ITSELF (1940) 7, 1I, 64. See Appendix,p. 831 infra, for a digest of the views of some of these writers.

32 RAsHDALL, THE THEORY OF GooD AND EvIL (1907) 84 et seq.; BOSANQUET,

THE PRINCIPLE oF INDiviDUAL Y AM VALUE (1912); SCHELER, FoRMALISMUs,passim; SCHELER, ABHANDLUNGEN UN] AuYsXTzE (1915; 2d ed. igig, under thetitle Voar UMSruRz DER WERTE) 74; von Hildebrand, Sittliche und Etische Werter-kenntnis (Deutschland, 1921) 4 JAHRBUCHr FOR PHirosopmE uND PHXNOMENOLO-

GISCHE FORSCHUNG 486; HARTMsANN, ETHICS (1932) 226 et seq.; HALDANE, THE

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retic values, as in mathematics, is particularly striking.3 Thesearguments, if applicable to ethics, would suggest some objectivehierarchy in the world of ought, independent of subjective viewsof individuals, but recognizable by man. 4

Whole-and-part theorists, especially in Gestalt theory, attackthe value problem from a different angle. They view values as aproduct of objective "requiredness" in a definite situation orfield; as a required response to some existing or potential "la-cuna," or gap, in such field; as a potential release of forces di-rected toward the " right " filling of that lacuna. 5 This view, too,tends to confer on values some kind of objective existence. It hastaken an interesting psychophysical turn by the hypothesis thatphysical processes within the cortex account for or correspond tothis urge. Looking at the world of ought from these viewpointswould not necessarily contradict the proposition that purely logicalconclusions must not pass from statements of is to statements ofought. But it does imply, once more, that between the two realmsthere are manifest factual links which have factual support suffi-cient to render the separation more or less irrelevant.'

REIGN OF RELATIVITY (1921) 357 et seq.; PERRY, GENERAL THEORY OF VALUE (1926)640; SPIEGELBERG, ANTIRELATIVIsmUS (I93) 65; GARNETT, REALITY AND VALUE(x937) 154, I67--68.

83 This point has been stressed in BRENTANO, VOM URSPRUNG SITTLICHER ER-XENNTNIS (1899) i7; see also RASHDALL, op. cit. supra note 32, at 85; RICxERT134; Husserl, Phiosophie als Strenge Wissenschaft (Deutschland, Igio); I Locos324-25. It is an old stock in trade. See PLATO, REPUBLIC, Bk. VII; PIRicE AREvIEw OF THE PRINCIPAL QUESTIONS AND DIFCULTIES IN MORALS (2d ed. 1767)63, 74 et seq.: "Whatever a triangle or a circle is, that it is unchangeably andeternally .... the same is to be said of right and wrong."

34 SPIEGELBERG, op. cit. supra note 32, at 94 admits that values may be de-pendent on variable historical factors, but not on subjective views. He speaks,therefore, not very felicitously, of a "relative absolutism." KANTOROWIcz distin-guishes between objectivity and universality.

35 See Wertheimer, Some Problems in the Theory of Ethics (1935) 2 SOCIALRESEARCH 353-67; K65HLER, THE PLACE OF VALUE IN A WORLD OF FACTS (1938);KoFrKA, THE GROWTH OF THE MIND (1924; 3d ed. 3928); KOFFKA, PRINCIPLES OFGESTALT PSYCHOLOGY (1935). But see also BOSANQuET, THE PRINcIPLE oF INDI-VIDUALITY AND VALUE (1912); MOORE, PRINcipiA ETHCA (1903) 27 et seq., 213 et

seq.36 K6H1LER, THE PLACE OF VALUE IN A WORLD OF FACTS (1938) 185, 233, 329

et seq.37 Wertheimer, op. cit. supra note 35, at 362, n.3, seems to go further and en-

visage the possibility that a revised code of logic would have to accept, as legitimate,logical conclusions drawn from some is to the "required" completion of a la-cuna, without resorting to a major premise of the ought form.

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THrE WEAK POINT OF THE ANTI-SEPARATIONISTS

We need not here go into the details of the controversial theoriesof value. This much, however, should be understood for the pres-ent purpose: the arguments here presented for the objectivevalidity of moral values may be quite effective against mere sub-jectivism and that lowest type of relativism which dogmatizes andabsolutizes subjectivity. They do not, however, strike at thecontentions of the higher level of relativists, who do not denythat there may be objective or absolute elements in the world ofought (and they may even "believe" in such elements), but whoinsist that communicable proof has not yet been offered regard-ing definite ultimate values, and that no methods have yet beendesigned which even promise in this respect. Scientific methodand honesty require, they conclude, treatment of potential ulti-mate values on an equal footing. These relativists (" neutralrelativists ") do not deny that there may be a factual link betweenis and ought, but they are skeptical of the possibility of scientificsupport for the link."8

Therewith the question of transmissible proof comes to theforeground. The output of the new philosophical schools in thisrespect is still pretty modest.

Few proponents of the doctrine that objective values can befound have even mentioned the objections to the demonstra-bility of moral values raised by the doctrine of separation. As tosupport, most have referred to " self-evidence" and "intuition"in more or less general terms. As to the differences between indi-viduals, they have generally restricted themselves to emphasizingthat intersubjective controversies are not able to obviate eitherthe validity of true obviousness or the superiority of the higherlevel of intuition.

Modern phenomenologists insist that immediate evidence,yielded by their method of guarded inner observation, can be fully

38 Thus Rickert, although believing in objective values, denied their demonstra-bility in non-theoretic fields, such as ethics and aesthetics, as well as the possibilityof their theoretic refutation in these fields. He demanded that philosophy, afterclarifying the various value concepts, finally "establish a system in which all ofthem find their orderly place." See RiC=ERT, xio, i55; GR sENZs DER NATURWISSEN-SCnArruCEMN BsxrrsrssDUNO 559 et seq. This corresponds to the viewpoint oflegal relativists like Radbruch and Kantorowicz. See note x3 supra.

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adequate and certain. But precisely when this is so remainsdoubtful. Husserl speaks of degrees of clarity of perception andof evidence more or less adequate or inadequate.39 Dealing withthe attentive apprehension of immanent phenomena and theiressentials (Wesen), he wrote: "Insofar as this intuitive appre-hension is a pure one which does not include transitory opinionswith it, so far are the apprehended characteristic phenomena(Wesen) something adequately apprehended and absolutelygiven." "' But how can we ascertain, and demonstrate intersub-jectively, that no transitory opinions have crept into our observa-tion, if others arrive at different results from their own immanentobservations? In his later works, Husserl admitted more clearlythat the "immediate evidence of experience implies the possi-bility of deception" and that" even an experience which pretendsto be apodictic may be revealed to be deceptive." "' He evenardently opposed the "usual, fundamentally wrong interpreta-tion" which regards such evidence as an "absolute guarantyagainst deception," and attacked playing with "immediate-evi-dence feelings." 42 He nevertheless offered several convincingillustrations of immediate evidence in the mental, emotional, andvolitional spheres. But they concern the description of non-con-troversial elements in our activities of thinking, perception, re-membering, imagination, emotion, volition, and are perfectlyconvincing only because it seems obvious that no human beingfunctions differently.

Scheler, who strives toward more complex objectives than doesHusserl, contends that full immediate evidence of what is goodor evil can never deceive us, but hastens to add that we maybe deceived as to whether there is full evidence. He even poursmore water into the wine by stressing that immediate evidence maydiffer among different individuals and races and may reveal onlywhat is "good for me." "'

39 IDEEN IO, 127 et seq.; LoGIK 139 et seq; MWDITATIONS 10, 12 et seq., ig et seq.40 Husserl, Philosophie als Strenge Wissenschaft (Deutschland, 19io) i LOGOS

315.41 LooiK 139, 140, 245, 253-4-42 Id. at 140, 144, 245, 250. The investigation of intersubjectivity in MWrnTA-

TIONS 74 et seq. contains nothing to correct this reserved attitude.43 FORMALISarUS 333, 335, 369; see also GARNETF, REALrrxy AND VALUE (I937)

288. This closely approximates the starting point of neutral relativism, for instance

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Phenomenology, according to a later member of this school,despite its merits in structural description has not even given usback the certainty of is (being) and therefore has not overcomerelativism even in the world of facts.4 This criticism, however,hardly does full justice to Husserl, whose original intention wascertainly not to ascertain the reality of is, but simply to lay barethe ultimate, original experiences which lie at the bottom of hu-man consciousness, regardless of what certainty they may giveus as to the external world.4 5

MEAGER RESULTS FOR POLITICAL AND LEGAL PHILOSOPHY

Political and legal philosophy have thus far profited little fromthe phenomenological approach. Husserl, whose cautious reservetoward ethical problems has already been mentioned, did notexamine political or legal problems. He once observed that gov-ernment and law are elements which must be "bracketed," orexcluded from direct observation in phenomenological examina-tions, because they are in the external, transcendent world.4" Hedid not discuss the immanent observation of the idea or feeling ofjustice.

Scheler, however, examined the fundamental political problemof the relation between the individual and the community. Heemphasized that every person constantly finds himself to be notonly an individual, but also a member of various communities,

both, positions being on an equal level of originality, neither beingsuperior (or anterior) to the other. This conclusion was, how-ever, too general to serve as a guide to political decisions in favorof the individual or the community. Scheler's numerous political

in Kantorowicz's formulation. KANTOROWICZ 684--85. See also the discussion inBrecht, The Search for Absolutes in Political and Legal Philosophy (1940) 7 SocIAL.RESEARCH 201, 210 on "part-absolutes."

44 METZGER, PHXNOm:ENOLOGIE TJND MIETAPrsysix, DAS PROBLEM DES RELA-

TIVIS=US UND SEUNER OBERWINDUNG (1933) 211-12. See also K6HLER, THE PLACE

OF VALUE IN A WORLD OF FACTS (1938) chapter "Beyond Phenomenology."45 See, e.g., MiED1TATIOzS 12, 25: " But here the question is of a science which

is as it were 'absolutely subjective' and whose object is independent of what wecan decide regarding the existence or non-existence of the world." Pp. 27, 52. Seealso LOGI 241, 245, 247, on Husserl's own relativistic confessions.

46 IDEEN I08.

47 FoPmALsmus 540 et seq. This vagueness was hardly improved by the the-

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writings, in which he dealt with war and peace, militarism, emanci-pation of women, the bourgeois, capitalism, etc.,4" were reallypsychological analyses, ethical speculations, and the politicalopinions of a philosopher interested in problems of the day, ratherthan attempts at accurate phenomenological demonstrations.They tend to show only how little the few basic findings ofphenomenology have as yet been able to narrow the bounds ofindividual speculations.49

Whenever phenomenologists have taken a stand on controversialpolitical and juristic evaluations, they have done so by abandon-ing the cautious methods of Husserl, and have thus made itpossible and even necessary to reject the alleged immediate evi-dence of their propositions as objective, absolute or universal.This criticism applies in particular to the efforts made by LeonhardNelson to derive a broad postulate of equality from that which isself-evident and that which results from rational argument," andthe attempt by Husserl's son, Gerhart, to establish by the phe-nomenological method the" essential "equality of human beings aspart of mankind, as distinct from their non-essential" similarity"because of their membership in the same race.5 The writers'laudable intentions should not blind us to the fact that both at-tempts failed to produce an intersubjective scientific argument.12

Nor has gestalt psychology penetrated to controversial issuesin political and legal philosophy. Kbhler excluded all ethical,political, or legal problems from his recent study." Max Wer-

ological remarks he inserted, regarding the common subordination of the individualand of the community to the Deity, or the Infinite. Id. at 546.

48 ScHELER, DER GENIUS DES KRIEGES UND DER DEUTSCHE KRIEG (1914; 5th and6th ed. 1917); SCHELER, DIE IEE DES FRIEDENS UND DER PAZisMus (193); alsothe latter sections of UMSTURZ DER WERTE, cited note 32 supra.

49 As for instance, when he characterized a war for hegemony in Europe a"just war" for Russia as well as for Germany, and perhaps also for England[GENIus DES KRTEGES 154 et seq., 164 et seq.], or as when he described British cant[id. at 354 et seq.] or advocated "instrumental militarism." IDEE DES FRIEDENs

UND DER PAzFI-sMUS (i931) 33, 6I.50 1 NELSON, VORLESUNGEN UBER DIE GRUNDLAGEN DER ETuIK, KRITIK DER

PRAKTISC3EN VERNUNFT (,917), and NELSON, SYSTEM DER PHIMoSoPrMsEcXRECHISLEHEE mm PoLrrix (1920).

51 Gerhart Husserl, Justice (1937) 47 INT. J. oF ETMCS 271-307.

52 See the analysis in Brecht, The Search for Absolutes in Political and LegalPhilosophy (940) 7 SociAL RESEARCH 201, 215. Note the erratum at p. 385.

58 Kb1ER, THE PLACE Or VALUE IN THE WoRLD or FACTS (938) 101, 339, 411.

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theimer, who does engage in ethical investigations, modestly ad-mits that it is necessary "to start with the study of the mostconcrete, transparent examples," or with "pure cases," and thatmost practical cases are "much more complicated." But herightly insists that this fact should not obscure the main issue, i.e.,that research is possible in this field. 4 More recently, KarlDuncker has emphasized that there are invariant inner laws ofethical valuation, and that only the different meanings of acts andsituations becloud this fact. Justice -just as bravery or gener-osity - has never been considered as a vice, he rightly says. Buthe does not describe in detail what the invariant inner laws ofjustice are.5

Other writers have stressed that all discussions on value atleast include some factors of invariant meaning, in particularwhen the issue is one of mere relations; 11 and that even subjectiv-ists assume a constant meaning of many terms used in the dis-cussion. 7

It has also been demonstrated that some a priori elements, ele-ments not arising out of positive law or juristic construction, butrather from the essence of possible relations among men and be-tween men and things, always underlie legal relations. AdolfReinach pointed to definite concatenations which are determinedby the" essence of social acts "rather than by law, concatenationssuch as "promise, obligation, claim, expiration by redemption orby abandonment of the claim," and similar links in the spheres ofproperty or agency. Such concatenations, he said, are self-evidentand fundamentally valid, even though the positive law may disre-gard them (and for good reason as, for instance, in the case of cer-tain unenforceable, informal, or immoral promises)."5 These in-quiries, and others as to the extra-legal essence of property (Locke)

54 Wertheimer, Some Problems in the Theory of Ethics (1935) 2 SocAL RE-SEARCr 364; see also A Story of Three Days in ANsH:EN (ED.), FREEDOm -ITs

MEANING (1940) 555.55 Duncker, Ethical Relativity? (1939) 48 MIND 39, 5o, 51-56 This side of the matter has been traced ably by KAUrmANN, METHODENLEERE

DER SoziALWIssENScnArTEN; Kaufmann, The Significance of Methodology for theSocial Sciences (1938) 5 SocAL RESEARCH 442-63 (i939) 6 id. at 537-55. See alsoLAiRD, THE IDEA Or VALuE (1929) 240: "Carrots-in-relation-to-a-donkey might

very well have absolute value."57 SPIEGELBERG, ANTIRELATIVISmUS (1935) 27.

58 Reinach, Die Apriorischen Grundlagen des Bfirgerlichen Rechts (Deutsch-land, 1913) I JAHRBUCH rUR PHMosoPUM UND PHOXnNOMNOLOGISCHE FORSCHUNG.

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and of human associations (Gierke), etc., have surely contributedto the ascertainment of what is "possible " or " impossible "in theregimentation of human activities. But modern writers far re-moved from Locke have, as a rule, abstained from setting absolutestandards for what is "permissible " or just in law and what isnot. To that extent, their contributions have again failed to yieldabsolute standards.

THE BRIDGE

All that has been said seems to indicate that, up to now, the"absolute" results of modern philosophical approaches to con-troversial political and juristic evaluations are almost negligible.When communicable proof is demanded, the various approachesseem to fail. The challenge of the gulf doctrine, although it maynot be justified in theory, seems then to prevail in practice.

But there is no need for defeatism, once it is clearly recognizedthat no necessary gulf lies between is and ought. And that muchcan be said safely. The gulf doctrine has artificially obscured theproblem by overstressing the logical aspect. Logical deductions inthe realm of ought presuppose major premises in that realm. Butformal logic may be a poor guide. The most absurd conclusionscan be deduced from absurd premises in a logically correct way.59

The value of a formal deduction depends primarily on the truthof the premises. If the premises are true, it is not so because oflogical reasons, but because of their accordance with facts. Ar-riving at logical conclusions from a true statement is a secondaryproblem which has been improperly pushed into first place by thegulf doctrine.

Statements intended to be true are primarily not logical deduc-tions, nor does their justification rest primarily on inductive con-clusions. They rest ultimately on the immediate evidence in sup-port of the truth of the statement or its elements. Thus it is afactual statement rather than a logical inference when we say thatfeeling some specific requiredness as an ought is part of our humanequipment. This urge, this demand, this ought, whatever its valueand validity, is a factum, a datum, found in the world of is. It

59 All men have three legs. Doe is a man. Therefore Doe has three legs. How-ever absurd, the conclusion is logically correct according to formal logic. Onmodern attempts to connect substantial truth and logic, see, e.g., Kaufmann, Truthand Logic (1940) 1 PEmosoPHY AND PHENOMNOLOGiCAL RESARcr 59-69.

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would be so even if only a part of mankind felt this ought as such.Here is the bridge, or one bridge, between is and ought.

One of the first problems, then, is that of discovering improvedmethods to demonstrate the invariant and inescapable elementsin the feeling of this ought. Although many difficulties are herepresent, a certain minimum of such necessary elements can wellbe demonstrated in a fully communicable way, if we combineseveral methods, using one as a check upon the other. To illus-trate in the case of justice (in the general sense of the term):There are certain minimum requirements of justice which we, asindividuals, regard as indispensable. We may be mistaken, or ourbelief may be the product merely of an individual feeling, otherpeople feeling differently. But we may check our self-observinginvestigation by an examination of whether there are requirementsthat are held indispensable by everyone. Even then there may bea mistake, since universality of error is possible. But we may addtwo further tests, namely, whether we cannot even imagine thatanybody else can have a different experience, and whether no oneelse can imagine such a thing.

Such a four-fold check provides us with a few fundamental ele-ments on which we can rely, and which can fairly be said to haveobjective character and to be invariant as far as our knowledgereaches."' These postulates are not meant to be elements merelyof " definition "in the arbitrary sense of the term, but inescapablefundamental elements in our human way of thinking and feeling.They certainly do not present us with a final system of values, anddo not directly enable us to decide between conflicting values suchas individual and group, liberty and equality, general will, con-servation, happiness, duty, struggle or peace. But their implica-tions are, nevertheless, surprisingly broad and inclusive. Theysever the controversial aspect of the problem from that which isnon-controversial, and not only from that aspect which happensto be non-controversial in the individual discussion, but rather

60 Brecht, Relative and Absolute Justice (1939) 6 SOCIAL RESEARCH, 58, 73

et seq.; Brecht, The Search for Absolutes in Political and Legal Philosophy (1940)7 SOCIAr. RESEARCH 201, 209 et seq. Five invariant. postulates of justice have beensuggested: (i) truth or veracity regarding the facts and the accepted system ofvalues, (2) generality of the accepted system of values; (3) equal treatment of whatis equal under that system; (4) no restriction of liberty beyond what is in linewith the accepted system of values; and (5) respect for the necessities of nature.The element of truth is especially valuable for practical purposes.

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from that which is necessarily non-controversial. They help inexpanding the scope of political and legal justice to include fieldsnot yet conquered by science, but which can, to a certain degree,be illuminated.

For present purposes, we can only indicate the fact that, andthe way in which, objective conclusions of this kind can be drawnfrom statements in the realm of is concerning stable elements inthe realm of ought. This much seems clear: the allegedly eternaland unbridgeable gulf between is and ought is but a myth.

Arnold Brecht.NEW YoRX, N. Y.

APPENDIX

(See note 31 supra.)

Windelband: "Relativism is abdication of philosophy. Therefore philosophycan stay alive only through the theory of the universal validity of values."

Moore: Personal affections and aesthetic enjoyments are the greatest goods.Rashdall: Moral judgments "possess an absolute truth or falsity, which is

equally valid for all rational beings."Bosanquet: The ultimate criterion of value is individuality, not in its transient

states of consciousness but in all its potentialities; not isolated but within the wholeto which it belongs.

Sheldon: Any tendency furthering an existing tendency is a good for it; this isthe only non-circular, positive definition of good; there is "no gulf between valueand fact."

Urban: Value does not come and go with the subject that feels it. Value is real,valid, objective, as distinct from existent and subsistent.

Hocking: Intuition is "seeing," assumption merely "groping." The "right ofthe individual to develop the powers that are in him" is a natural right, ascertain-able by intuition.

Laird: "Excellence is objective"; "timology is our insight into values; and wehave this insight, often imperfectly, to be sure, but authentically nevertheless."

Garnett: Values are "objective," "objectively real," "are there," "discoveredrather than established "; "as immediately given they have that final reality whichbelongs to everything else with which we have direct acquaintance."

Ross: There are no absolute, but prima facie obligations, e.g., to fulfill promises;these we know by intuition. Any prima facie obligation may be over-ridden by an-other that is more stringent. Yet even in such cases of conflict, objectivity may beattained.

Perry: Although a relativist regarding preferences [GE.NERA THEoRY or VALuE(1926) 640), he feels able to derive from the proposition that the "most inclusive"goods are best, the definition of the supreme good as "the object which satisfies allindividuals, when individuals are both integrated and harmoniously associated."Id. at 686. More recently, he has seemingly attributed to agreement objective, evenabsolute value.

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