The heaven of legal concepts

The opening of Felix S. Cohen, “Transcendental Nonsense and the Functional Approach” (1935):

Some fifty years ago a great German jurist had a curious dream. He dreamed that he died and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, laches, and rights in rem. Here were all the logical instruments needed to manipulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems. Here one found a dialectic-hydraulic-interpretation press, which could press an indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts. The boundless opportunities of this heaven of legal concepts were open to all properly qualified jurists, provided only they drank the Lethean draught which induced forgetfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget.

Von Jhering’s dream has been retold, in recent years, in the chapels of sociological, functional, institutional, scientific, experimental, realistic, and neo-realistic jurisprudence. The question is raised, “How much of contemporary legal thought moves in the pure ether of Von Jhering’s heaven of legal concepts?” One turns to our leading legal textbooks and to the opinions of our courts for answer. May the Shade of Von Jhering be our guide.

The celestial emporium of benevolent knowledge

from Borges’s essay “El idioma anal√≠tico de John Wilkins,” published in Otras Inquisiciones, translated by Ruth L. C. Simms, later made famous by the opening of Foucault’s Les mots et les choses:

At one time or another, we have all suffered through those unappealable debates in which a lady, with copious interjections and anacolutha, swears that the word luna is more (or less) expressive than the word moon. Apart from the self-evident observation that the monosyllable moon may be more appropriate to represent a very simple object than the disyllabic word luna, nothing can be contributed to such discussions. After the compound words and derivatives have been taken away, all the languages in the world (not excluding Johann Martin Schleyer’s volap√ľk and Peano’s romance-like interlingua) are equally inexpressive. There is no edition of the Royal Spanish Academy Grammar that does not ponder “the envied treasure of picturesque, happy and expressive words in the very rich Spanish language,” but that is merely an uncorroborated boast. Every few years the Royal Academy issues a dictionary to define Spanish expressions. In the universal language conceived by Wilkins around the middle of the seventeenth century each word defines itself. Descartes had already noted in a letter dated November, 1629, that by using the decimal system of numeration we could learn in a single day to name all quantities to infinity, and to write them in a new language, the language of numbers. He also proposed the formation of a similar, general language that would organize and contain all human thought. Around 1664 John Wilkins began to undertake that task.

Wilkins divided the universe into forty categories or classes, which were then subdivisible into differences, subdivisible in turn into species. To each class he assigned a monosyllable of two letters; to each difference, a consonant; to each species, a vowel. For example, de means element; deb, the first of the elements, fire; deba, a portion of the element of fire, a flame. In a similar language invented by Letellier (1850) a means animal; ab, mammalian; abi, herbivorous; abiv, equine; abo, carnivorus; aboj, feline; aboje, cat; etc. In the language of Bonifacio Sotos Ochando ( 1845) imaba means building; imaca, brothel; imafe, hospital; imafo, pesthouse; imari, house; imaru, country estate; imede, pillar; imedo, post; imego, floor; imela, ceiling; imogo, window; bire, bookbinder, birer, to bind books. (I found this in a book published in Buenos Aires in 1886: the Curso de lengua universal by Dr. Pedro Mata.)

The words of John Wilkins’s analytical language are not stupid arbitrary symbols; every letter is meaningful, as the letters of the Holy Scriptures were meaningful for the cabalists. Mauthner observes that children could learn Wilkins’s language without knowing that it was artificial; later, in school, they would discover that it was also a universal key and a secret encyclopedia.

After defining Wilkins’s procedure, one must examine a problem that is impossible or difficult to postpone: the meaning of the fortieth table, on which the language is based. Consider the eighth category, which deals with stones. Wilkins divides them into the following classifications: ordinary (Hint, gravel, slate); intermediate (marble, amber, coral); precious (pearl, opal); transparent (amethyst, sapphire); and insoluble (coal, clay, and arsenic). The ninth category is almost as alarming as the eighth. It reveals that metals can be imperfect (vermilion, quicksilver); artificial (bronze, brass); recremental (filings, rust); and natural (gold, tin, copper). The whale appears in the sixteenth category: it is a viviparous, oblong fish. These ambiguities, redundances, and deficiencies recall those attributed by Dr. Franz Kuhn to a certain Chinese encyclopedia entitled Celestial Emporium of Benevolent Knowledge. On those remote pages it is written that animals are divided into (a) those that belong to the Emperor, (b) embalmed ones, (c) those that are trained, (d) suckling pigs, (e) mermaids, (f) fabulous ones, (g) stray dogs, (h) those that are included in this classification, (i) those that tremble as if they were mad, (j) innumerable ones, (k) those drawn with a very fine camel’s hair brush, (l) others, (m) those that have just broken a flower vase, (n) those that resemble flies from a distance. The Bibliographical Institute of Brussels also resorts to chaos: it has parceled the universe into 1,000 subdivisions: Number 262 corresponds to the Pope; Number 282, to the Roman Catholic Church; Number 263, to the Lord’s Day; Number 268, to Sunday schools; Number 298, to Mormonism; and Number 294, to Brahmanism, Buddhism, Shintoism, and Taoism. It also tolerates heterogeneous subdivisions, for example, Number 179: “Cruelty to animals. Protection of animals. Moral Implications of duelling and suicide. Various vices and defects. Various virtues and qualities.”