An Axiologistic Position: Heller

Abstract

Heller’s book The Logic and Axiology of Analogical Adjudication [29] appeared in 1961. At the beginning of its first, introductory part, devoted to a general discussion of “the concept and the logical structure of analogy and of analogical inference”, the aim of the work is said to be: “by the example of analogy to show the points of contact between the problems of the application of law, and formal logic, and to make a contribution towards the necessary separation between the logical and the axiological elements in the application of law” (1). Implicit in the basic distinction between the logical and the axiological elements of legal analogy are two assumptions of unequal plausibility. The first one, unobjectionable, is that the mode of induction known in general logic as “analogical inference” does not exhaust the jurists’ concept of analogical inference. The second assumption, on the other hand, seems confused and dubious: it is that the residue is entirely or mainly nonlogical. For Heller the residue in question is “axiological”: it involves the “spiritual acts” of “valuation”, “preference and rejection”, and “choice between several possibilities”. The axiological elements, however, are not properly analyzed.