This paper deals with the ‚description-thesis‘ (R. Schreiber 1962) according to which normative or prescriptive legal statements are reducible to, or translatable into, descriptive propositions. The arguments Schreiber produced in support of his thesis are briefly presented, followed by a discussion of the thesis against the background of Hume’s law and G. E. Moore’s open-question argument. In order to broaden the perspective, some other philosophical views are examined; emphasis is placed on how the is-ought relation was conceived, in conflicting ways, (...) by Hans Kelsen and Friedrich Müller respectively, as compared to the current state of discussion, and what are, according to Ernst Tugendhat and Christoph Möllers, the constituents of (social) norms. As a result, the paper suggests that the description-thesis can not be maintained in its entirety. A special version is presented which seems to respond to the criticism discussed while implying at least part of what Schreiber’s original version claimed. (shrink)

The purpose of this paper is, while discussing in detail Helmut Rüßmann's theory of judicial factfinding, to demonstrate how probability theory can be used in dealing with a situation where the court has not obtained full evidence, but probability assumptions are possible with regard to circumstantial evidence. After giving a brief overview of provisions of German law which include the concept of probability, elementary features of probability calculus and statistical inference are outlined. The focus of the discussion of Rüßmann's theory (...) is on evaluating testimony and on combining the impact of several pieces of evidence which bear on the same event or proposition; the relevant concepts of Ekelöf, Schreiber, Rüßmann and Dempster are analyzed and then compared with a new proposal. The paper concludes that alternative approaches to probability need not be invoked;,classical' probability calculus seems to best cope with the questions courts are confronted with in situations such as discussed in the paper. (shrink)