Table Of Content
- About the author
- About the book
- This eBook can be cited
- Introduction: The background of methodological discussions in legal sciences
- 1 The methodological characteristics of legal sciences
- 2 Legal science and the science of law
- 3 Legal science
- 3.1 The descriptive model
- 3.2 The normative model
- 3.3. The integral model
- 3.4 The derivational model
- 3.5 The hermeneutic model
- 3.6 The realistic model
- 4 The science of law
- 4.1 Legal realism
- 4.2 The critical model
- 4.3. The economic model
- 4.4. The biological-evolutionary model
- 4.5 The socio-behavioural model
- 5 Naturalisation and legal sciences
- Epilogue: Legal sciences and the philosophy of law
- Series index
One of the most important characteristics of the development that has been taking place over the past several centuries is the increase in the prestige and importance of science as the most credible source of knowledge about reality. This process of the “disenchantment of the world,” to use Max Weber’s term, gained impetus during the scientific revolution of the sixteenth and seventeenth centuries,1 with the Copernican turn in astronomy marking its symbolic starting point, and Newton’s laws of motion – its closure. Other major figures of the time were Francis Bacon and Galileo. Bacon is credited with undertaking a systematic reflection on the empirical foundations of knowledge, which he presented in Novum Organum of 1620. This work was to replace the long-dominant Aristotelian-scholastic approach to explaining reality, which based on syllogistic reasoning from fundamental truths and logically necessary principles.
Bacon contrasted this method with inductive reasoning, which took single observations as the point of departure and aimed at conclusions in the form of generalisations corresponding to empirically observable laws of nature.2 Bacon recommended cautious induction and careful elimination of typical cognitive errors (“idols”) which interfered with empirical reasoning. This was supposed to counteract the human propensity to yield too easily to flights of imagination and to erect various intellectual structures which proved remote from reality. Knowledge derives from sound and arduous investigation of facts and consists in formulating only such conclusions as these facts can support. According to Bacon, human understanding needs no wings but “lead and weights.”3
Galileo’s experiments and observations not only paved the way for a number of breakthrough discoveries which abolished beliefs so far accepted as “obvious ←7 | 8→truths,” but also laid foundations for the mechanical-mathematical model of nature, crowned by Newton’s great synthesis of the laws of classical mechanics. It is Newton’s Mathematical Principles of Natural Philosophy (1687) that formed the cornerstone for the modern scientific method, explaining what appeared to be a variety of motion phenomena with several relatively simple and basic principles, formulated in a way which is precise, consistent, and open to empirical verification.
The triumphant advance of science which this revolution had started continued through centuries of breakthroughs in chemistry (eighteenth century) and biology (nineteenth century) and the impressive development of computer science (twentieth century). These changes led to a major transformation in the foundations of scholarly thinking and in the way of life of nearly all human societies (the industrial revolution, electricity, medicine, transportation, and telecommunication). As a result, scientific cognition itself became for many the most desirable, if not the only credible, source of knowledge about reality. It was explicitly juxtaposed with non-scientific views, in particular, with superstitions, unfounded beliefs, fruitless speculations, and naive projections of human expectations and wishes.
In philosophy, this scientism culminated in the logical positivism of the Vienna Circle, preceded by the nineteenth-century positivism of August Comte and the eighteenth-century mechanical philosophy developed by Pierre Laplace and Julien La Mettrie, rooted in the thought of Thomas Hobbes.4 In Comte’s classical positivism, the realisation that knowledge rests exclusively on the empirical observation of facts and cause-effect relations that bind them together marks the moment when humanity becomes “mature.” This is the closing stage of the centuries-long process of overcoming infantile theological and religious explanations and lay rationalist metaphysics that later replace them. For Comte, the fact that humanity entered the final positive phase meant that fantasies and speculations had to be abandoned for objective scientific knowledge about facts – knowledge which provided a thorough explanation of the world and its processes.
The object of knowledge is reality in its entirety, with its particular levels studied by interrelated scientific disciplines. Ultimately, these disciplines form a whole, where the more basic sciences serve as the foundation for those addressing more complex phenomena. In this way, entire knowledge is based on ←8 | 9→mathematics, through astronomy, physics, chemistry, and biology, to sociology, the study of society. As one moves along the scale, the degree of generality of the phenomena studied by individual disciplines decreases, while their complexity grows. They form a continuum, where the order
is determined by the degree of simplicity, or, what comes to the same thing, of generality of their phenomena. Hence results their successive dependence, and the greater or lesser facility for being studied.5
In later years, Comte extended the list, adding ethics, a philosophical moral doctrine based on objectively observable regularities in human needs and behaviours and in the social processes that these needs and behaviours triggered.6
The positivist movement initiated by Comte soon underwent divisions and, for various reasons, began to wither, while scientism, which was thriving over the next decades, abandoned many of the most important ideas proposed by the French founder of positivism.7 Still, the kernel of his naturalist model of the world – one that construes reality in terms of phenomena which are, in principle, describable by laws discovered by individual sciences concerned with its various levels or aspects – has become part and parcel of the western intellectual tradition, often forming the keystone of the intellectual worldviews of European elites.
The revival of the positivist-oriented “scientific worldview” took place in the first half of the twentieth century, mostly as a result of the activity of a group of scholars known as the Vienna Circle. Many of the ideas they propagated were to a greater or lesser extent inspired by the thought of Ludwig Wittgenstein, one of the most eminent and renowned philosophers of the past century, and his Tractatus Logico-Philosophicus, published in 1921.8 Wittgenstein’s position in relation to the Vienna Circle was far from unambiguous, and in the course of time, the philosopher revised and abandoned his earlier views presented in Tractatus. Nevertheless, there is no doubt that for many leading representatives ←9 | 10→of the Vienna Circle, they were an important source of inspiration and an object of deep personal fascination, especially after direct contacts with Wittgenstein during his stay in Vienna. It is debatable whether or to what extent the interpretation of Tractatus by members of the group was accurate. Still, it is indisputable that the main ideas of logical positivism largely coincided with at least one possible and justifiable reading of the text – one that emerged after months of close reading and discussion, sentence by sentence, of its fragments during the weekly meetings of the Circle.9
Tractatus – dubbed a “logical poem” for its unique style – contains claims which were central to the view of science and scientific approach developed by Vienna logical positivism. According to it, the world is the totality of facts. Pictures of facts that people make to themselves are thoughts expressible in the form of propositions. The sense of a proposition, Wittgenstein argues, is the picture of reality – of the fact – that it represents. Thus, only propositions which represent facts have sense. They can be understood because
[t]o understand a proposition means to know what is the case, if it is true.10
Only propositions which have sense can be true or false (that is, they can have a logical value), depending on whether they are accurate representations of the facts to which they correspond. One can, of course, understand a proposition without knowing whether it is true or not. But one can speak of understanding only if the proposition represents a certain state of affairs (a fact), that is, if it “shows how things stand, if it is true.”
A proposition “only asserts something, in so far as it is a picture,” that is, in so far as it represents a state of affairs that is the case if it is true.11 Conclusions that Wittgenstein draws from the above are radical. It is possible to express something only if the propositions used to express it represent a certain state of affairs. And only such propositions can be understood. All other propositions – those that do not represent any facts – are senseless; they may seem to have sense, but in fact, they are incomprehensible because there is no sense that can be ascribed to them. This brings Wittgenstein to the following conclusion:
The totality of true propositions is the total natural science (or the totality of the natural sciences).12
Only such propositions can be understood (only such content is expressible) and determined as true or false, because they can be compared with the states of affairs they represent. Whatever goes beyond a description of facts falls outside what can be thought and intersubjectively communicated.
Thus, good and beauty (ethics and aesthetics) lie beyond the boundaries of the expressible. If the world consists only of facts which simply are the case, their potential value must “lie outside the world,” as Wittgenstein puts it. Hence, it rests beyond the boundaries of what can be encapsulated in a thought that has sense and is comprehensible and expressible through language, through propositions which have sense. According to Wittgenstein, “[i]t is clear that ethics cannot be expressed. Ethics are transcendental.”13 The same applies to problems which cannot be resolved by referring to facts that can be ascertained and expressed. Therefore,
[m]ost propositions and questions, that have been written about philosophical matters, are not false, but senseless. We cannot, therefore, answer questions of this kind at all, but only state their senselessness.14
For Wittgenstein, philosophy “is not one of the natural sciences. (The word ‘philosophy’ must mean something which stands above or below, but not beside the natural sciences.)”15 Its aim is not to provide knowledge in the form of propositions about facts, but to critically analyse language in order to identify statements which merely pretend to have sense and be comprehensible but, in fact, are senseless (that is, attempt to express something that lies beyond the realm of facts).
The result of philosophy is not a number of “philosophical propositions,” but to make propositions clear. Philosophy should make clear and delimit sharply the thoughts which otherwise are, as it were, opaque and blurred.16
The main point of this radical position is to demonstrate that the boundaries of what can be meaningfully expressed are in fact surprisingly tight and come down to whatever can be empirically ascertained as true (and which forms “the totality of the natural sciences”). As a result,
[t]he right method of philosophy would be this. To say nothing except what can be said, i.e. the propositions of natural science, i.e. something that has nothing to do with ←11 | 12→philosophy: and then always, when someone else wished to say something metaphysical, to demonstrate to him that he had given no meaning to certain signs in his propositions. This method would be unsatisfying to the other—he would not have the feeling that we were teaching him philosophy—but it would be the only strictly correct method.17
Once we understand the boundaries of the expressible, we are able to fully recognise the senselessness of any attempts to express in language the “mysteries of life” that we consider so important. It turns out that all most important things, including those that fall under ethics and aesthetics, lie outside the scope of language and knowledge of facts that is linguistically expressible. Hence,
even if all possible scientific questions be answered, the problems of life have still not been touched at all. Of course there is then no question left, and just this is the answer.18
Thus, whatever is important cannot be understood, and whatever can be understood is metaphysically insignificant. The impossibility of saying anything that goes beyond verifiable propositions about facts accumulated by science is fundamental and uncancellable, and any mindless, repeated attempts to break through this impassable boundary can only result in an endless stream of nonsense and chaos. This is why, in a short preface to Tractatus, Wittgenstein presents his main recommendation, which follows, in his view, from his inquiries: “[w]hat can be said at all can be said clearly; and whereof one cannot speak thereof one must be silent.”19 The truth of the thoughts that lead to this conclusion seems, says Wittgenstein, “unassailable and definitive. I am, therefore, of the opinion that the problems have in essentials been finally solved. And if I am not mistaken in this, then the value of this work secondly consists in the fact that it shows how little has been done when these problems have been solved.”20
Tractatus was received with great interest by many foremost members of the Vienna Circle, where – in their opinion – similar problems of “the scientific view of the world” (Wissenschaftliche Weltauffassung) had for some time been discussed. They shared the view that true knowledge of reality was only constituted ←12 | 13→by beliefs that could be expressed in the form of elementary observation statements (so-called protocol propositions). The correspondence between protocol propositions and facts, or the lack of such correspondence, determined whether conclusions drawn from these propositions were true or false. This is also what made such propositions significant (comprehensible), because to understand a proposition meant to know how to determine whether it was true or false (which facts determined its truth or falsehood).21
Thus, meaningful propositions are those describing reality in a way that can be reformulated in terms of observation protocol statements or analytic propositions, true by virtue of definition (e.g., “A square has four sides”). The latter, however, perform ancillary function in relation to observation statements, merely indicating the kind of reasoning that is justifiable and thanks to which knowledge consists not only of a list of singular observations but also of the consequences that logically follow from them, generalisations by induction, and others.
In this way, the logical positivists of the Vienna Circle, known also as logical empiricists, reached the conclusion that whatever did not fit their model of scientific knowledge had no cognitive value. Scientific knowledge consists of claims which can be reformulated in terms of empirically verifiable observation statements and of analytical propositions, true by definition. Other statements – including evaluations, regulations, and non-empirical speculations, expressing, in fact, various emotions, longings, beliefs, or hopes – belong to futile, if not harmful, metaphysics, which only pretends to be true knowledge. It may be of great value to human beings and form an important part of their lives, but it does not provide any objective knowledge. Thus, such non-empirical metaphysical considerations are,
like laughing, lyrics, and music, expressive. They express not so much temporary feelings as permanent emotional or volitional dispositions… Both have no representative function, no theoretical content. A metaphysical proposition, however – as distinguished from a lyrical verse – seems to have some, and by this not only is the reader deceived, but the metaphysician himself. He believes that in his metaphysical treaties he has asserted something and is led by this into argument and polemics against propositions of some other metaphysician… The danger lies in the deceptive character of ←13 | 14→metaphysics; it gives the illusion of knowledge without actually giving any knowledge. This is the reason why we reject it.22
It is the task of a reliable, useful philosophy to unmask such pseudo-knowledge and expose it as a collection of meaningless statements amounting to incomprehensible gibberish rather that falsehood (if it is impossible to establish what must be the case for them to be true, they turn out to be objectively incomprehensible). Statements such as: “The limitless is the first substance” (Anaximander) or “The absolute Idea is…, on the one hand, substantial fullness of content and, on the other hand, abstract free volition” (Hegel) would then be classified as metaphysical by the Vienna Circle philosophers, that is, as nonsense passing itself off as profound truths. In fact, however, as Carnap points out, they are “neither true nor false, because they assert nothing.”
As a result, like Wittgenstein in Tractatus, the Vienna Circle aimed at putting an end to traditional philosophical disputes. Logical positivists maintained that it was possible either to transform them into empirically soluble scientific problems (which is not to say that the problems could indeed be investigated or solved at the current state of knowledge and technology), or to expose them as nonsense metaphysics. According to them, the whole of scientific knowledge forms a uniform building resting on the foundations provided by physics, and physics offers the most elementary language for the description of reality. Consequently, it is in this language that observation protocol statements should be formulated.23 The language of other sciences can be reduced to statements of physical facts, although phenomena of higher complexity (such as biological organisms or society) may require concepts and theories which match their nature and scale. Nevertheless, reality is ultimately physical in nature, so it must be possible to transform the whole of knowledge into the language of elementary physical observations. Indeed, it was one of the long-term (and never fulfilled) aims of the Vienna Circle to build a system of unified science, where theories concerning various phenomena were translatable into the physicalistic language.
The activity of the Vienna Circle was soon interrupted, first, by the murder of Moritz Schlick, who in organisational matters was the moving spirit of the Circle, and later, by the Anschluss of Austria by the Third Reich, followed by ←14 | 15→emigration and dispersion of the majority of leading representatives of Vienna logical positivism. Moreover, the views propagated by the Vienna Circle evoked critical reactions. The most significant criticism came from Karl Popper, a philosopher closely associated with the Circle and called by some logical positivists “the official opposition of the Vienna Circle.” As early as in the 1930s, Popper published a book in which he criticised one of the cornerstones of logical empiricism, that is, the tenet that the empirical verifiability of propositions is the criterion of their meaningfulness. According to Popper, this belief leads to two false conclusions. Firstly, it results in treating all considerations that cannot be transformed into observation statements as meaningless nonsense, or “nonsensical twaddle.” This stance of logical positivism, Popper argues, can be compared to “trying to kill metaphysics by calling it names.” In fact, metaphysics is a valuable area of human thought and many ideas that it nurtured have added to the advancement of science.24
Secondly, and more importantly, some fundamental theories of natural science fail the criterion of empirical verifiability as a condition of meaningfulness (comprehensibility) of their claims. As Brian Magee points out, Popper’s criticism has convincingly demonstrated that:
logical positivism claimed to be first and foremost a (indeed the) scientific view of the world, and yet its central tenet, the Verification Principle, wiped out the whole of science.25
Laws of science are general – they refer to an infinite number of cases – and the principle of verifiability in their case runs into the problem of induction, well known at least since Hume’s time. It consists in the realisation that no number of observations can count as empirical verification of a universal law as formulated by science. No finite number of observations can provide empirical evidence for a claim that refers to an infinite number of possible future events.26 Under this view, every general scientific law is empirically non-verifiable and must be treated as a metaphysical rather than scientific claim. Thus, as a tool for removing metaphysics from science, the verification principle in fact dealt ←15 | 16→a heavy blow to the latter. As Magee puts it, “[p]eople began to realise that this glittering new scalpel was, in one operation after another, killing the patient.”27
Rejecting the verificationist theory of meaning propagated by logical positivists, Popper proposes a different perspective. The real “problem of demarcation,” as he calls it, does not consist in distinguishing between meaningful statements and nonsense, but in distinguishing between scientific and non-scientific claims. In particular, it involves the distinction between science and pseudo-science, that is, theories that declare themselves as scientific but in fact are not. Non-scientific statements need not be meaningless, but they lack the cognitive credibility that is attached to scientific claims and hence should not be confused with them (this is why, what poses a real threat to knowledge is not whatever is non-scientific but whatever pretends to be science, namely, pseudo-science). The criterion of demarcation between scientific and non-scientific claims is not empirical verifiability of the former, but their falsifiability.
A claim (or theory) is scientific if there is a possibility to refute it by experience. No number of observations that confirm a particular theory can conclusively establish it as true. However, a single observation that contradicts it is sufficient to falsify it and to refute it as false. Thus, only views formulated in a way that allows empirical falsification deserve to be called science – views for which it is possible to identify observations that might disprove them as false. Beliefs which are empirically non-falsifiable fall outside science, and if they aspire to be scientific, they belong to pseudo-science.
In formulating the idea of falsifiability as a criterion of demarcation of science from non-science, Popper drew inspiration from vivid discussions that continued within various intellectual currents and trends developing in the first decades of the twentieth century. That was the time when Karl Marx’s theories (which claimed to offer a “scientific” explanation for the organisation of society and the historical development of humanity) and Sigmund Freud’s psychoanalysis were at the height of popularity. At the same time, the very foundation of modern science, that is, Newtonian classical mechanics, was questioned by Einstein’s theory of relativity. Popper pointed out the striking difference between Einstein’s attitude towards his own theory and the stance taken by proponents of Marxism and Freudianism. Both Marxism and psychoanalysis – like astrology – attracted supporters by their “apparent explanatory power.” Popper puts it in the following way:
←16 | 17→These theories appeared to be able to explain practically everything that happened within the fields to which they referred. The study of any of them seemed to have the effect of an intellectual conversion or revelation, opening your eyes to a new truth hidden from those not yet initiated. Once your eyes were thus opened you saw confirming instances everywhere: the world was full of verifications of the theory. Whatever happened always confirmed it.28
They exemplify theories constructed in such a way that their adherents come across an “incessant stream of confirmations,” because they account for everything that takes place or could take place. Both the occurrence and non-occurrence of a given fact are equally convincingly explained by them and serve as confirmation of the truth of such theories. The situation is very different with Albert Einstein’s theory. Einstein demonstrated what empirical consequences followed from the theory he proposed (very different from those that could be predicted on the basis of previous physical knowledge), pointing out that if observations conducted in appropriate conditions did not correspond to his predictions, his theory would be refuted. The possibility to conduct such observations appeared several years later, during an eclipse of the sun, and Sir Arthur Eddington’s expedition, specially organised for this purpose, actually observed phenomena that were in complete agreement with the predictions of the theory of relativity.
For Popper, falsifiability in the sense explained above – understood as susceptibility to empirical refutation – was the key feature of a truly scientific theory. If a theory is constructed in such a way that no observation can disprove it, it does not deserve to be called scientific (but it may belong to pseudo-science). At the same time, no scientific theory can be conclusively validated. Observations which do not falsify a theory make it more probable and function as corroborating evidence, but there is no guarantee that future observations will not refute it.
Thus, in Popper’s view, scientific method is hypothetical-deductive in nature. It consists in the formulation of hypotheses and in attempts to conduct observations that would disprove them. The bolder the hypothesis, and the more resistant to falsification, the better it is, because it forbids a greater number of facts which, if observed, would refute it. A hypothesis which few observations could potentially disprove is trivial, and one which does not exclude any observations is scientifically worthless. In other words, each scientific hypothesis must be a prohibition, that is, it must exclude the possibility of some observations, which, if actually made, render it false.29 At the same time, the less probable a hypothesis ←17 | 18→is – that is, the greater number of observations can potentially disprove it – the better, as long as it survives attempts at refutation.
As can be seen, Popper’s hypothetico-deductive theory of science encourages formulating boldest possible hypotheses and conjectures, and then subjecting them to rigorous and systematic tests, until an empirically refuted hypothesis is replaced by a new one. This view of the method of empirical sciences proved highly influential and gained enormous popularity; in fact, Popper himself claimed that by presenting it, he had “killed” logical positivism. However, his ideas soon met with criticism very similar to that he had raised against Vienna positivism. The most serious challenge came from one of Popper’s most famous disciples: Thomas Kuhn, American philosopher of science. According to him, the gravest weakness of Popper’s theory of science lies in its glaring incompatibility with actual scientific practice. As Kuhn argued, the history of science demonstrated clearly and unambiguously that
[i]f any and every failure to fit [theory and data] were ground for theory rejection, all theories ought to be rejected at all times.30
The practice of scientific research looks indeed very different. According to Kuhn, each scientific community concerned with a particular discipline develops a set of shared beliefs, fundamental theories, concepts, and models how to properly formulate and solve scientific problems. This is what Kuhn calls the paradigm of the discipline. Thanks to the commonly accepted paradigm, it is possible to ask concrete scientific questions and to search for answers, which together comprises what Kuhn refers to as “normal science.”
All research problems that are legitimate in the light of the set of concepts, theories, and methodological models of a particular paradigm are treated as puzzles. Solving the puzzles corresponds to filling in the gaps in knowledge based on that paradigm. Paradigms determine which problems are scientifically legitimate, significant, or solvable. And similarly, research questions which cannot be formulated according to the principles of the prevailing paradigm are considered, within its limits, as illegitimate and unscientific – or simply “the wrong sorts of questions to ask.”
As Kuhn argues, over time, within each established paradigm, there appear anomalies: observations, facts, or phenomena that are in conflict with its basic tenets. When the number and significance of such anomalies – observations ←18 | 19→which cannot be accounted for within the dominant paradigm – pass the critical point, a crisis may follow, leading to a so-called scientific revolution. This is where the period of normal science comes to an end: the previously prevailing paradigm is rejected and replaced by a new one, which can better explain the observations that so far could not be accounted for and were treated as anomalies.
According to Kuhn, a paradigm is not rejected merely as a result of empirical data that contradict it. Such observations can undermine it or question its credibility. However, a true scientific revolution does not take place until theoretical proposals are formulated which can lay the basis for a new, “better” disciplinary paradigm. If they are promising in terms of their ability to explain the available facts and observations (including those that so far were regarded as anomalies), a next stage in the development of science may begin: the stage of a developing crisis and rivalry between competing paradigms, with some scholars abandoning the previously accepted views on the foundations of their discipline, and others staying faithful and seeking to defend them.
Scientific revolutions can be short or very long (sometimes lasting many decades) and end with a victory of one party or the other. What is important is that the competing paradigms are largely incompatible, that is, they apply totally different perspectives to explain the phenomena of a particular discipline. As a result, it is impossible to settle this competition by a simple confrontation of theories and facts. Rather, it is a question of clash and rivalry between two worldviews that offer an entirely different interpretation and explanation of the same phenomena. This is because their defenders refer to arguments that make sense within only one paradigm, in the light of its assumptions and concepts, and this argumentation, obviously, cannot be convincing for supporters of the other, competing paradigm. Thus, the differences of opinions between scholars who work within various paradigms in fact amount to “what is a problem and what a solution.”31
The degree of attractiveness of a paradigm is not (or not only) a matter of its “past achievement” but rather “future promise.” This means in particular that
[t]he man who embraces a new paradigm at an early stage must often do so in defiance of the evidence provided by problem-solving. He must, that is, have faith that the new paradigm will succeed with the many large problems that confront it, knowing only that the older paradigm has failed with a few. A decision of that kind can only be made on faith.32
The victory of a new paradigm is often a long process, advancing in spite of the fact that “some scientists, particularly the older and more experienced ones, may resist indefinitely.”33 Abandoning an old paradigm and replacing it with a new one lead to another period of normal science, with a particular scientific community, once again, referring to a shared set of basic theories, concepts, methods, and models of formulating and solving specific research problems – or puzzles – of their discipline. Because of scientific revolutions, the process of scientific development is not cumulative; it is only the periods of normal science – practiced within the currently prevailing paradigm – that are cumulative in nature. As a result of a paradigm shift, the so far accumulated knowledge becomes largely outdated and has to be replaced with new theories and explanations. Moreover, what has been considered a legitimate scientific question may now turn out to be a pseudo-problem, misconception, or a blatant error.
This change in worldview – or, more precisely, in the way of thinking about a specific aspect of the world investigated by a particular discipline – involves the necessity to rewrite, in whole or in part, the existing textbooks. This need arises “whenever the language, problem-structure, or standards of normal science change,”34 because it is through textbooks that the current paradigm is maintained and propagated. The fact that they have to be rewritten following a scientific revolution means that the perspective from which the prior development of knowledge is described changes as well. This results in disguising not only the role but also the very existence of the revolution that has effected in the paradigm shift. Although textbooks usually make references to the history of a particular discipline, the point of view they adopt is that of the paradigm that has produced them. Kuhn puts it as follows:
Partly by selection and partly by distortion, the scientists of earlier ages are implicitly represented as having worked upon the same set of fixed problems and in accordance with the same set of fixed canons that the most recent revolution in scientific theory and method has made seem scientific.35
This is why the development of particular disciplines is often perceived as a linear process of accumulating discoveries, which has gradually (and, so to say, inevitably) brought them to their current shape. This is made possible by a certain reinterpretation of the past (or by writing history backwards, to use Kuhn’s phrase), which ignores the fundamental incompatibility of paradigms that follow ←20 | 21→one another. Thus, the current paradigm appears to be more than a set of beliefs and research standards of a particular discipline, which an individual must accept to become a member of the community of “serious” scholars. It also appears to be the endpoint of a long process of knowledge development, which, through a series of discoveries and improvements, has led to true knowledge of a particular aspect of reality.
Popper himself tried to refute these objections, arguing that Kuhn described the actual course of scientific development in terms of psychological and sociological aspects of scholarly practice but did not propose a new, “logical” model of scientific method, which was what he had intended to do. Nevertheless, further development of philosophical reflection on science and whatever constitutes it has followed the path taken by Kuhn. For example, Imre Lakatos, another famous student of Popper, supported and amplified Kuhn’s criticism of the principle of falsifiability. It is not the case that observations contradicting a theory that is being put to test must inevitably lead to its refutation. Each theory may be almost freely supplemented with additional assumptions, elaborations, and exceptions which make it compatible with new observations. In this way, the task of testing a particular theory is, in a sense, moved to another place, at the moment less vulnerable to falsification. As Lakatos puts it,
[n]ature may shout no, but human ingenuity – contrary to … Popper – may always be able to shout louder.36
These additions and modifications give rise to competing chains or clusters of interconnected theories, which Lakatos calls scientific research programmes.37 They fulfil the same function for scholars who work in their framework as Kuhn’s paradigms. They are the foundation and the axis of knowledge and determine which questions or problems are legitimate and which methods of answering or solving them are appropriate. Within one discipline, several research programmes may coexist, each based on entirely or partly different assumptions and offering various explanations for the same phenomenon.
What Kuhn calls normal science is in fact a period of development of a research programme, where apparently inexplicable facts must be accounted for by theories which belong to it or develop within its scope, so that observed anomalies can be treated as verifications confirming the programme. Each research ←21 | 22→programme consists of a “hard core” and a “protective belt” of auxiliary theories and hypotheses, which are of lesser importance. The hard core is not subject to empirical verification; it cannot be questioned without abandoning the programme. This is why it is protected by a belt of auxiliary hypotheses and theories, which, in case of persistent contradiction with empirical data, can be altered, expanded, or replaced by others. The negative heuristics of a programme prohibits the falsification of its hard core, which means that all anomalies must be neutralised by adopting or refuting auxiliary theories of the outer protective belt.
At the same time, each programme also has its positive heuristics, which specifies what can and should be investigated within its scope, how to formulate research problems to ensure that they are scientific, what methods can be used to solve them, and so on. The positive heuristics makes it possible to systematically revise and modify the protective belt and thus “saves the scientist from becoming confused by the ocean of anomalies,”38 which surrounds each research programme. Research programmes can be progressive or degenerative, depending on whether they are able to predict new phenomena and explain new observations or, conversely, have no predictive power but merely protect themselves against the pressure of facts that contradict their assumptions.39 As a result, research programmes which turn out to be more progressive supersede those which are degenerating and whose scientific vitality is on the decline.
The most radical anti-falsificationist stance was taken by Paul Feyerabend, another influential student of Popper. He rejected the view that science proceeded according to predefined methodological schemata and strict rules which were to ensure its scientific character. Feyerabend referred to this view of scientific progress as authoritarian and claimed that, as clearly demonstrated by past developments, the only methodological principle that had actually made it possible was anything goes. If scientists had taken into consideration any restrictions forcing them to reject views which contradicted observations or prior theories, the most significant and valuable discoveries, including major scientific breakthroughs, would never have been made.40
According to Feyerabend, the history of greatest scientific discoveries has conclusively demonstrated that any attempt to confine research activities to the “application of methods of criticism and proof … would wipe out science as we ←22 | 23→know it, and would never have permitted it to arise.”41 Scientific progress proceeds through presenting and defending hypotheses which in many cases run against what so far has been considered as corresponding with facts and which often violate all norms and canons of scientific inquiry accepted at a given time. More often than not, such hypotheses are rejected, ridiculed, or ignored and are quickly forgotten. But sometimes they prove accurate and initiate a revolution in their domains. The more of such ideas, theories, or suggestions scientists put forward, the better, as it is only through ferment and unrestricted discussion that identification of the best and most promising of them is possible (and, indeed, none of them agrees, or can agree, “with all the facts in its domain”42). To ensure an unhindered development,
a person trying to solve a problem whether in science or elsewhere must be given complete freedom and cannot be restricted by any demands, norms, however plausible they may seem to the logician or the philosopher who has thought them out in the privacy of his study.43
Feyerabend frequently illustrated his views with the story of the Copernican Revolution and its defence by Galileo. At that time, the heliocentric model of the world – according to which it was the earth, not the sun, that was in permanent motion – stood, as Feyerabend argues, in glaring contradiction with common sense and with what was accepted as obvious and easily observable facts. A popular argument invoked to disprove the Copernican theory involved an experiment with a stone falling from a tower. According to it, if the earth were in motion, a stone falling from a tower would have to hit the ground at a certain distance from its base. This distance would increase with the height of the tower and the time of falling, because during this period of time, the tower – together with the whole earth – would move away from the straight vertical trajectory of the falling stone.44
Thus, Copernican heliocentrism was on the one hand “refuted” by a variety of empirical proofs that exposed its fallacy, and on the other defended by Galileo in a way that Feyerabend referred to as “propaganda” and “psychological tricks,”45 supported merely by invented thought experiments (rather than based on experiment proper). This is why Feyerabend was of the opinion that Galileo’s trial by ←23 | 24→the Roman Inquisition should not be interpreted as a confrontation between religious dogmas and “scientific knowledge.” On the contrary, it was a confrontation between the most solid and reliable scientific knowledge then available, consistently supporting the geocentric view of the world, and Galileo’s speculations, which at that time were dubious and groundless and which were thought to pose a serious threat to the social order.
From this perspective, Feyerabend argues, the Church “acted no differently from modern scientific institutions: universities, schools and even research institutes,” as they all take similar measures to deal with views which their authors introduce as revolutionary and for which they cannot present sufficiently solid and convincing evidence. As a result of the first trial, Galileo “was advised to teach Copernicus as a hypothesis; he was forbidden to teach it as a truth.”46 It is only his perseverance in propagating Copernicanism as a scientifically proven view of the world (together with perjury and mockery of the Pope) that brought about the second trial, as a result of which Galileo, at that time 69, was put under house arrest and his Dialogue Concerning the Two Chief World Systems, Ptolemaic and Copernican was placed on the list of prohibited books.
Feyerabend argued that all forms of the mythologisation of science should be rejected, including Popper’s falsificationism, which he considered an extreme manifestation of dogmatism. In his opinion, the logical positivism of the Vienna Circle reduced the objectives of philosophy to clinging onto science’s coat-tails, and Kuhn provided scientists with a false alibi that the lack of criticism for the existing views – the paradigm – was the recipe for doing “mature science.” Moreover, he questioned the alleged superiority of the scientific view of the world over other modes of perception of reality, pointing out that in modern western societies, science had become a form of religion.
According to Feyerabend, science is not, in principle, superior to other forms of beliefs or cultural practices. It owes its special status to the prejudice of western societies, dogmatically rejecting anything that does not fit the narrow picture of the world which has grown to dominate the Euro-Atlantic culture within the last few centuries. Because of that, science is in a position of undeserved privilege and, while receiving gigantic support, continues to give off an ←24 | 25→aura of exceptionality, which protects its high status and the benefits that go with it. In the past, Feyerabend argues, the separation of church and state became a fact; now it is time for science to become separate from the state. Science should be brought back to the status of one of the possible ways of understanding the world, of a type of practice by a specific group of people. This, in turn, should neutralise the dangers resulting from the growing power of “experts” who control societies, borrowing authority from the mythologised status of science.47
Disputes about the methodology of empirical sciences that were underway throughout the twentieth century had little impact on the humanities and social sciences, including legal sciences. Here, discussions focused on their characteristic features and distinctiveness from the natural sciences, that is, historically speaking, on an older problem. The idea that there was a group of “spiritual” sciences (Geistewissenschaften), whose object and methods made them significantly distinct from the natural sciences (Naturwissenschaften), emerged at the end of the nineteenth century and became known in the history of ideas as the anti-positivist turn. It came as a reaction to the triumphant, radically positivist views of the convergence of object and method of all sciences in the classical formulation by August Comte, later referred to by various versions of scientism (e.g., by Herbert Spencer).
Wilhelm Dilthey was one of the foremost figures of the anti-positivist turn of the end of the nineteenth century. For him, the major difference between Natur- and Geistwissenschaften lay in the object of inquiry: facts and natural relationships in the case of the former, and the “spiritual” realm of human experience (culture) in the case of the latter. Because the humanities investigate human “expression of life,” they rely on the hermeneutic process of understanding rather than on explanation in terms of causes and effects. In the case of a poem, painting, or another artefact of culture, this understanding leads ultimately to re-experiencing it, to re-creating a particular thought content in the mind of the receiver (Nacherlebens).
This highest form of understanding, however, can only be achieved through complicated processes of elementary forms of understanding, which, for Dilthey, do not attempt to deduce the cause from the effect. Rather, they aim at comprehending the specific relation between the action or object which is an expression of life on the one hand, and that which is being expressed, on the other. In sciences whose object comprises an indelible “humanistic coefficient,” to use Florian Znaniecki’s term, the appropriate method must consist in comprehending and ←25 | 26→explaining behaviours of subjects by reconstructing the subjective sense they make of the world. For this reason, Dilthey regarded psychology as a basis for the humanities, much like mathematics and mechanics provided the basis for the natural sciences and physics, respectively.48
A slightly different perspective on the separate status of the humanities was developed within the Baden School of Neo-Kantianism. Like Dilthey, its founder Wilhelm Windelband maintained that it was impossible to reduce culture and social life to phenomena that could be described with the methods of the natural sciences. However, he argued that
an empirical discipline of such significance as psychology is not to be accommodated by the categories of the natural sciences and the humanities; to judge by its subject, it can only be characterized as a humanity, and in a certain sense as the foundation of all the others; but its entire procedure, its methodological arsenal, is from beginning to end that of the natural sciences.49
Windelband proposed that, instead of this anachronistic juxtaposition, empirical sciences should be distinguished from cultural studies (Kulturwissenschaften), with the major difference consisting in their methods rather than objects of study.
[D]ie Erfahrungswissenschaften suchen in der Erkenntniss des Wirklichen entweder das Allgemeine in der Form des Naturgesetzes oder das Einzelne in der geschichtlich bestimmten Gestalt; sie betrachten zu einem Teil die immer sich gleichbleibende Form, zum anderen Teil den einmaligen, in sich bestimmten Inhalt des wirklichen Geschehens. Die einen sind Gesetzeswissenschaften, die anderen Ereignisswissenschaften.50
Cultural studies are idiographic in that they are not concerned with discovering general principles that govern a certain class of phenomena, but rather aim to understand and describe concrete facts (events) in all their uniqueness. Thus, they are concerned with individual events (Ereigniswissenschaften) rather than laws, which are the province of natural studies (Gesetzeswissenchaften). At the same time, Windelband emphasised that the juxtaposition of idiographic and ←26 | 27→nomothetic sciences was not ontologically motivated. The same phenomena can be analysed both nomothetically and idiographically; for example, the human being can be studied from the physiological-biological perspective, that is, in terms of general laws of nature, or from the idiographic perspective, that is, as a concrete, unique individual with his or her own distinctive biography.
Heinrich Rickert, Windelband’s disciple and a continuator of his thought, “the true father of the Baden School in all its greatness,”51 reformulated the distinction between idiographic and nomothetic sciences, juxtaposing generalising (generalisierenden) sciences on the one hand, and individualising historical (historisch-individualisierenden) sciences on the other. Although the distinction between the generalising method, characteristic of the natural sciences, and the individualising method of the sciences of culture is not absolute, it demands that the utopian idea of the universal method should be rejected.
Like Windelband, Rickert regarded this division as purely methodological and did not refer to any differences between the objects of these two types of sciences. The same reality can be described with a focus on universal aspects (“as they have always been”) or concrete, historical aspects (“as they really were”).52 Social sciences must belong to individualising sciences because they are concerned with phenomena that are related to values, which makes them unique and irreducible to universal principles described in terms of general laws of nature. It does not mean that social scientists should evaluate their objects; it means that they should take into consideration the complex ways in which the relationship with the domain of values turns a particular object of study from a mere psychophysical unit into a unique element in the domain of culture.
A still different, and perhaps most influential, perspective on the methodological distinctiveness of the humanities and social sciences was proposed by Max Weber, the cofounder of modern sociology. The sociological method he advocated consisted in the interpretive understanding of human behaviours, that is, in the reconstruction of their subjective sense: the goals, aspirations, and motives of the agents. Thus, Weber’s “understanding sociology” (Verstehende Soziologie) markedly differs from the natural sciences, where phenomena are described and explained, but not in terms of motivations and goals that underlie intentional acts. In the social sciences, the focus is on the recreation of the meaning and ←27 | 28→“structures of sense” behind human actions. This, in turn, requires taking into consideration the context of culture in which they are embedded. On this view, facts form the basis for sociological understanding, but they are only the starting point for further processes of rational interpretation of the cultural meaning of social actions.53
Interestingly, according to Weber, history “pursues the causal analysis … of individual, culturally significant actions, structures and personalities,” while sociology “seeks general rules about events,” classifying various forms of behaviour to types. This makes it possible to formulate sociological “laws,” that is generalisations based on “typical probabilities confirmed by observation,” which are “both understandable and definite in the highest degree insofar as the typically observed point of action can be understood in terms of the purely rational pursuit of an end.”54
Weber draws a clear distinction between the description of values which underlie a particular action, and evaluation of the action by the scientist. If the former is essential to humanities research (it is indispensable to understanding), the latter is unacceptable. The basic requirement for any true science, including the humanities and social sciences, is that it should be value-free (the doctrine of Wertfreiheit of science), that is, that the description and explanation of the object of study should be neutral with regard to subjective opinions of and evaluation by the scholar. The aim of science is to give an objective, unprejudiced, and value-free description of its object. This holds true also for cases where the object is a human action, that is where the analysis and interpretation must take into account the values which underlie it and which give it its cultural and social sense.
In this respect, there is no difference between the natural sciences and any other field of knowledge. A textbook of astronomy offers no room for ruptures over the beauty of the sky; similarly, sociologists (or any other scientists concerned with human behaviour), who are expected to accurately reconstruct the values relevant to concrete human actions, cannot voice their own opinions on the objects studied – at least as long as they approach them as scientists.55 The aim is to arrive at understanding, not to acclaim or criticise. Scientists have the right to hold personal opinions and experience emotional reactions to what they describe, but in no way can they reveal them when they act as scientists; in ←28 | 29→particular, they cannot attempt to impose their value judgements ex cathedra, because then they misuse the authority of science to raise their subjective opinions to the status of “scientific truths.”56 This is difficult especially in the case of objects which easily stir emotions. However, the ability to keep apart the emotionless, unbiased description of facts and their evaluation is for Weber a major dividing line separating scientific from non-scientific statements.57
Despite the existing controversies over the concept of understanding sociology, the distinction between a methodology which aims at understanding culturally significant facts and that which aims at their mere description, combined with the idea of science as free from the scientist’s value judgements, no doubt became an important element of the anti-naturalistic approach to the humanities and social sciences in the twentieth century.58 It has also had a major impact on the methodological self-awareness of legal sciences, especially on positivist legal dogmatics, where it is still today an important point of reference.
1For more details, see, e.g., A.R. Hall, The Scientific Revolution, 1500–1800: The Formation of the Modern Scientific Attitude (London: Longmans, Green, 1954).
2For more details, see T. Kotarbiński, “Myśl przewodnia metodologii Franciszka Bacona. Program Bacona” [The Guiding Thought of Francis Bacon’s Methodology. Bacon’s Program], in Kotarbiński, Szkice z historii filozofii i logiki [Sketches from the History of Philosophy and Logic] (Warszawa: Państwowe Wydawnictwo Naukowe, 1979), pp. 104ff and 134ff.
3“[W]e do not need to give men’s understanding wings, but rather lead and weights, to check every leap and flight. And this has not been done before; but when it shall be done, we may have better hope of the sciences;” F. Bacon, The New Organon, eds. L. Jardine and M. Silverthorne (Cambridge, Cambridge University Press, 2000), p. 83.
4On the history of mechanism in philosophy and in science, see a comprehensive and in-depth account by M. Heller and J. Życiński, Wszechświat - maszyna czy myśl? Filozofia mechanicyzmu - powstanie, rozwój, upadek. [The Universe - Machine or Thought? The Philosophy of Mechanicism - Rise, Development, Decline] (Kraków: Polskie Towarzystwo Teologiczne, 1988).
5A. Comte, The Positive Philosophy of Auguste Comte, Vol. 1, trans. H. Martineau (Kitchener: Batoche Books, 2000), p. 48.
6M. Pickering, August Comte: An Intellectual Biography, Vol. 3 (Cambridge: Cambridge University Press, 2009), p. 240f; cf. also A.J. Noras, Kant i Hegel w sporach filozoficznych osiemnastego i dziewiętnastego wieku [Kant and Hegel in the Philosophical Disputes of the Eighteenth and Nineteenth Centuries] (Katowice: Wydawnictwo Uniwersytetu Śląskiego, 2007), p. 203.
7For more details, see Noras, Kant i Hegel…, pp. 206f.
9M. Geier, Der Wiener Kreis (Hamburg: Rowohlt, 1992), pp. 73–74.
10Wittgenstein, Tractatus…, t. 4.024, p. 41.
11Ibid., t. 4.03, p. 41.
12Ibid., t. 4.11, p. 44.
13Ibid., t. 6.421, p. 88.
14Ibid., t. 4.003, p. 39.
15Ibid., t. 4.111, p. 44.
16Ibid., t. 4.112, p. 44.
17Ibid., t. 6.53, p. 90.
18Ibid., t. 6.52, p. 89.
19Ibid., p. 23.
20Ibid., p. 24. Interestingly, Wittgenstein was fully aware of the fact that his own considerations presented in Tractatus failed to meet the criteria of comprehensible statements which represented facts, and that they fell within the scope of metaphysics. This is why he added the following reservation: “he who understands me finally recognizes them as senseless, when he has climbed out through them, on them, over them. (He must so to speak throw away the ladder, after he has climbed up on it;)” ibid., t. 6.54, p. 90.
21“Stating the meaning of a sentence amounts to stating the rules according to which the sentence is to be used, and this is the same as stating the way in which it can be verified (or falsified). The meaning of a proposition is the method of its verification;” M. Schlick, “Meaning and Verification,” The Philosophical Review 45:4 (1936), p. 341.
22R. Carnap, Philosophy and Logical Syntax (London: Kegan Paul, Trench, Trubner & Co. Ltd., 1935), pp. 29–31.
23Throughout the period of activity of the Vienna Circle, disputes continued over the object and structure of such basic observation statements; see A. Koterski, Spór o zdania protokolarne. “Erkenntnis” i “Analysis” 1932 -1940 [Dispute over Protocol Phrases. “Erkenntnis” and “Analysis” 1932 -1940] (Warszawa: Aletheia, 2002), p. 32.
24K. Popper, The Logic of Scientific Discovery (London: Routledge, 2005), p. 16.
25B. Magee, Confessions of a Philosopher (New York: Random House, 1997) p. 57.
26As noticed by Bertrand Russell, the argument that such generalisations from a finite number of observations have so far worked, that is, have so far been confirmed by upcoming future events, is based on a vicious circle, because in an attempt to make induction more reliable, it makes use of inductive reasoning itself.
27Magee, Confessions…, p. 57.
28K. Popper, Conjectures and Refutations (New York: Basic Books), 1962, p. 34.
29Ibid., p. 37.
30T. Kuhn, The Structure of Scientific Revolutions, 2nd ed., (Chicago: University of Chicago Press, 1970), p. 146.
31Ibid., p. 109.
32Ibid., p. 158.
33Ibid., p. 152.
34Ibid., p. 137.
35Ibid., p. 138.
36I. Lakatos, “History of Science and its Rational Reconstructions,” Boston Studies in the Philosophy of Science 8 (1971), p. 100.
37I. Lakatos, The Methodology of Scientific Research Programmes (Cambridge: Cambridge University Press, 1978).
38Ibid., p. 50.
39This is why, according to Lakatos, only a research programme can be scientific; qualifying a single theory as scientific would count as a category error; ibid., p. 42.
40P. Feyerabend, Against Method (London: Verso, 1993), p. 155.
41Ibid., p. 148.
42Ibid., p. 39.
43Ibid., p. 262.
44Ibid., pp. 55–56.
45Ibid., p. 65.
46Ibid. p. 132. Feyerabend quotes a very interesting fragment of a letter by Cardinal Bellarmine, the main prosecutor in Galileo’s case, where he argues that if there were solid evidence in support of heliocentrism, the Church should admit to an error in the understanding of relevant fragments of the Holy Scripture rather than deny a view that was proved beyond doubt (p. 132, note 17).
47P. Feyerabend, Science in a Free Society (London: New Left Books, 1978).
48See H.A. Hodges, Wilhelm Dilthey: An Introduction (Ann Arbor: University of Michigan, 2010), pp. 38–39.
49W. Windelband, “History and Natural Science,” trans. J. Lamiell, Theory and Psychology 8 (1894/1998), p. 11; see also A.J. Noras, Historia neokantyzmu [History of Neo-Kantianism] (Katowice: Wydawnictwo Uniwersytetu Śląskiego, 2012), pp. 474–475.
50W. Windelband, “Geschichte und Naturwissenschaft.” Rede zum Antritt des Rektorats der Kaiser-Wilhelms-Universität Straßburg gehalten am 1. Mai 1894; available at http://philosophierer.blogspot.com/2014/09/wilhelm-windelband-geschichte-und.html; accessed 3.12.2018.
51Noras, Historia…, p. 479.
52S. Schallon, “Zur Dedeutung Heinrich Rickerts ‘Die Grenzen der Naturwissenschaftliche Begriffsbildung,’” in Schallon, Rickert. Texte zur Praktischen Philosophie (London: Turnshare, 2009), p. xviii.
53M. Weber, Economy and Society, ed. and trans. G. Roth and C. Wittich (New York: Bedminster, 1968).
54Ibid., p. 18.
55S. Andreski, Max Weber’s Insights and Errors (London: Routledge & Kegan Paul, 1984).
56M. Weber, “Science as Vocation,” in The Vocation Lectures, trans. R. Livingstone, ed. D. Owen and T. Strong (Illinois: Hackett Books, 2004).
57Andreski, Max Weber’s Insights….
58Ibid.←29 | 30→
Any discussion of the need and prospects to naturalise scientific thinking about law must start with formulating a possibly precise understanding of the object and nature of legal sciences. This preliminary issue, as I will argue, to a large extent determines the stance on the question of the practicability and validity of contemporary naturalisation appeals. At the same time, this task comprises problems which are anything but simple or unequivocal. Disputes regarding the essence and methodological assumptions of legal sciences have a long history, and views that can be regarded as commonly accepted and adopted are more than scarce. Thus, we have to start with the problem of the nature and kinds of scientific thinking about law. Only against this background will it be possible to draw some conclusions concerning whether, and to what extent, legal sciences can and should follow the contemporary naturalisation trends in methodology, which are increasingly embracing those areas of knowledge that so far have been regarded as the province of the humanities and systematic reflection on social and cultural phenomena.
The debate over the status and methodology of law as a science started in the nineteenth century. It was triggered by the eclipse of the speculative systems of natural law and their finest achievement, that is, the rationalist legal naturalism of Christian Wolff, inspired by the views of Gottfried Leibniz. The turn of the nineteenth century in Europe saw many deep-going changes in the intellectual and legal culture. On the one hand, it marked the beginning of the era of the codification of law, which resulted in the dominance of written statutory law. This, in turn, meant that lawyers had to focus more closely on the linguistic analysis and dogmatic interpretation of legal texts as the main method of learning law. On the other, the intellectual transformations that came with the Age of Reason severely undermined the confidence in universal systems and unalterable norms of natural law, all of which were based on metaphysical assumptions. David Hume’s scepticism played a special role in this respect, as did theories – such as Giambattista Vico’s and Montesquieu’s – that shed light on the complex relationship between law and various social and cultural factors. Moreover, the beginning of the nineteenth century also saw the rise of a radical utilitarian philosophy, with Bentham’s criticism of the very concept of natural ←31 | 32→rights and the related ideology, which he dubbed “nonsense upon stilts.”1 Finally, it was the time when various natural sciences gained autonomy, adding to the aspirations of law to become a separate, autonomous science, with its own object of study and appropriate research methods.
As a result, it was in the nineteenth century that the process of shaping the methodological framework for legal sciences gained impetus. In particular, the foundation and development of Friedrich Carl von Savigny’s historical school and the emergence of positivist, systematic legal dogmatics made it possible to redefine their main objective as a possibly thorough analysis and scientific study of the norms of positive law that are in force in a particular place at a given time. Law started to be treated as a historical phenomenon, the content of which could be rationally reconstructed on the basis of appropriately organised empirical data, that is, laws and codes established by lawmakers and doctrines that evolved around them. In the decades that followed, legal sciences were turning to these sources of data with increasing frequency. Christopher Columbus Langdell, a famous reformer of American jurisprudence and for many years Dean of Harvard Law School, used the following metaphor to encapsulate this idea:
the work done in the [Law] Library is what the scientific men call original investigation. The Library is to us what a laboratory is to the chemist or the physicist, and what the museum is to the naturalist.2
It is the task of the jurist to transform the raw material of law into a coherent, orderly, and understandable system of laws in force hic et nunc. This, in turn, requires careful exegesis of particular norms in order to disperse doubts concerning their validity, interpretation, or possible mutual conflicts and to establish relations obtaining between individual regulations, so that potential gaps or contradictions in the data which serve as the object of dogmatic legal analysis can be effectively solved.
This change in thinking laid the ground for the paradigm of legal science as we know it today, marked by positivism, idealism, and formalism. It is positivist in that it takes positive law as its main object of study: human-made laws and other regulations, together with the related judicature and doctrine. Thus, the findings of legal science must be based on empirical facts, that is, on the texts of ←32 | 33→normative acts, rulings, and other sources of law which are recognised in a particular legal order, and on other relevant documents. For legal science, the object of analysis is, in principle, the content of laws established in concrete historical circumstances, which in that particular place and time formed a legal system.
The idealism of legal science concerns the ways in which it refers to concepts – such as being in effect, norm, legal system, source of law, legislator, legal relation, claim, or legal person – that denote ideal objects or abstract constructs, rather than empirical facts. These are the fundamental tools for the description of “legal reality,” which is, in principle, based on obligation (that is, it states what follows from the binding laws) and for this reason does not have to tally with what particular persons actually do in real life. In other words, statements of legal science concern the norms, or models of behaviour that these norms impose, no matter whether or to what extent they are actually followed by people. Thus, what lies at the core of legal statements are not actual acts, but the content of norms that define the binding model of behaviour.
At the same time, the findings of legal science can be considered formalist in that the obligation they express is, in principle, only a restatement of the obligation expressed in law itself. It is the task of the scholar to reconstruct the models of behaviour that form the very content of norms established by the lawmaker (and not by the scholar). Their binding force (or normativity) follows from the fact that they are present – explicitly or implicitly – in the legal text by the lawmaker, regardless of personal opinions of the scholar, who might or might not find them acceptable.
Although the belief that the nineteenth-century jurisprudence of concepts was marked by extreme formalism is to a large extent a product of its later critics, it cannot be doubted that at that time, the task of legal science was primarily limited to formal operations which were to transform empirical legal material into a logical, coherent system based on an ordered network of concepts and an inventory of basic principles that held them together. This is the kind of system that enables legal reasoning and finding solutions in the existing law to cases which have not been directly and explicitly accounted for in the norms. However, another important task of legal science is to methodically develop the existing law, so that the gaps in the legal material are filled in a way which does not disturb the coherence and consistency of the legal system, making it possible to attribute to the lawmaker the solutions that follow from it.
The rise of jurisprudence as a science investigating the content of laws did not proceed without tensions. Fierce discussions were going on about almost all important aspects of nineteenth-century legal sciences, in particular, about the so-called Pandectist methods, the school of exegesis, Savigny’s and Puchta’s ←33 | 34→historicism, a radical turn in the views of Rudolf von Ihering and his method of weighing interests, and, finally, the ideas developed within the school of free law (Freirechtsschule). Still, the most heated debate was triggered by the radical criticism of the methodological foundations of legal sciences expressed by an outstanding Prussian jurist Julius von Kirchmann in a lecture Die Wertlosigkeit der Jurisprudenz als Wissenschaft (The worthlessness of jurisprudence as a body of knowledge).3 In 1847, at a meeting of the Berlin Law Society, he gave a speech which resonated through German legal circles and which exposed him to years’ long political harassment (including relegation to the position of vice-president of a local court of appeal in the town of Racibórz in Upper Silesia, at that time under Prussian administration).
In his speech, Kirchmann argued that no other discipline could boast so much aimless verbosity as legal literature. The object of study for jurists is a provisional, arbitrary, and often random decision of a particular lawmaker, transformed into a text of law which is binding at a given time. For this reason, jurisprudence is scientifically worthless. The “truths” it establishes and propagates turn into “untruths,” and vice versa, in the blink of an eye, depending on the whimsy of the lawmaker. What is more, according to Kirchmann, scientific analyses of law are hostile to any advances in legal thought, as they strive to force new phenomena into the so-far applied schemata and categories. A prime example of this practice is the many-century-long tradition of referring to the institutions of Roman law in circumstances with which they are incompatible, in the reality of other times and places. In this way, legal sciences are carrying the burden of the past, unable to break themselves free from its powerful influence.
Legal decision, Kirchmann argues, are based not only in reason but also in the subjective sense of justice. This is what makes legal statements intrinsically different from those made by typical natural sciences, where the truth of a statement does not depend on the scientist’s approval. An author who is concerned with legal considerations usually has some preconceptions concerning the validity of relevant claims even before undertaking a “scientific” inquiry into a particular legal problem or regulation. However, this subjective judgement of what is right is never the criterion of truth; rather, Kirchmann maintains, it is the product of upbringing, customs, temperament, and other, similarly contingent circumstances. Problems and findings of legal sciences are therefore servants of chance, coincidence which determines the content of law, and the subjective ←34 | 35→judgement of the scholar whose statements are supposed to represent scientific legal knowledge.
In their treaties, monographs, commentaries, and exegeses, jurists focus on those fragments of positive law which pose problems or difficulties and turn out to be unclear or incomprehensible.
Nur ein kleiner Teil davon hat das natürliche Recht zu seinem Gegenstand; neun Zehntel und mehr haben es nur mit den Lücken, Zweideutigkeiten, Widersprüchen, mit dem Unwahren, Veralteten, Willkürlichen der positiven Gesetze zu tun. Die Unkenntnis, die Nachlässigkeit, die Leidenschaft des Gesetzgebers ist ihr Objekt. Selbst das Genie weigert sich nicht, dem Unverstand zu dienen; zu dessen Rechtfertigung all seinen Witz, all seine Gelehrsamkeit aufzubieten. Die Juristen sind durch das positive Gesetz zu Würmern geworden, die nur vom faulen Holz leben; vom gesunden sich abwendend. Es ist nur das kranke, in dem sie nisten und weben.
The value of such efforts focusing on problematic issues of the text of law is negligible, because, as Kirchmann puts it, a few words of the lawmaker can turn whole law libraries into waste paper.
Although Kirchmann’s arguments and his scathing tone were obviously products of his times, many of the methodological problems haunting legal sciences that he touched upon in his speech remain controversial after 150 years. At the same time, one cannot disagree with Karl Larenz, who, in a critical commentary to Kirchmann’s lecture, points out that the role of jurisprudence and the function it serves for jurists and the legal system are more important than the considerations concerning its status as a science.4 According to Larenz, the problem of the range of the term science is secondary, and if it were narrowed down to exclude jurisprudence, it would at the same time leave out other Geisteswissenschaften. Still, even if one accepts, after Larenz, that all rational efforts to obtain knowledge are scientific provided that they make use of appropriately developed methods of inquiry, well-suited to their objects, and effective mechanisms of controlling the results, the problem of jurisprudence as a science does not appear to be conclusively resolved.
Also today, major critical voices are raised that call into question the scientific value of the dominant paradigm of dogmatic juristic inquiries. For instance, over a century after Kirchmann, explicit criticism was expressed by Stanisław Ehrlich. Ehrlich refers to the views which describe dogmatic disciplines of jurisprudence as “science which explains and systematises applicable law:”
←35 | 36→dogmatics is a strange science, limited as it is to explaining, commenting, and systematising… it is rash to treat as scientific a skill whose achievements can at any time be erased by a nonscientific intervention [original emphasis].… Legal dogmatics is neither a theoretical nor a practical science. It is not a science at all. It is a technical skill in handling legal texts. … What kind of “methods” does this science apply, a science which has limited its field arbitrarily and in advance to normative material, and its research method, to the principles of elementary logic, several interpretive rules that evolved centuries ago through practice, and efforts of so-called common sense. What poor tools these are! And they are sufficient to learn a certain technical skill which is available to any intelligent practitioner, any intelligent specialist. Of course, this kind of skill, which makes it possible to produce commentaries and textbooks, is socially useful. But appeals to usefulness… are not enough to legitimise science.5
Ehrlich’s arguments elicited a polemical response from Jerzy Wróblewski. Wróblewski convincingly demonstrates that the criteria of scientific inquiry that Ehrlich implicitly applies are nebulous. He also argues that, while the appeal by Ehrlich for legal sciences to “penetrate deep into social processes” is by all means justified, statements about the actual working of law will never be able to replace statements which interpret, systematise, or validate, and which are the result of dogmatic legal considerations.
In time, recurring discussions over the methodological assumptions of legal sciences have considerably mitigated the criticism levelled against ascribing the status of science to particular legal disciplines. Still, they have not contributed much to working out a shared, commonly accepted view of the methodological canon of legal sciences or of jurisprudence as a kind of science.
This situation can be demonstrated by a brief survey of literature on the methodological aspects of legal studies. Irrespective of the existing differences of opinions, the authors often start from divergent assumptions about what a scientific reflection on law is and what constitutes its object. Even such fundamental aspects of jurisprudence as the object and findings that can be obtained from its study remain largely disputable. As a result, there are also major differences in the way the methodological foundations of legal sciences are defined.
In the majority of works, especially those by German authors, the terms juristic methodology (Juristische Methodenlehre) and methodology of legal science (Methodenlehre der Rechtswissenschaft) – used synonymously – refer to the presentation of problems in and ways of interpreting and applying law, as well as ←36 | 37→to the types of reasoning used in solving the difficulties connected with the legal qualification of acts.
In a classical text on the methodological underpinnings of legal science (later editions co-authored by Claus-Wilhelm Canaris), Karl Larenz includes the following main topics: the structure of the normative statement; problems in establishing facts to which a particular law is to be applied; types of interpretation of law and legal reasoning, which makes it possible to apply existing law to unregulated cases; and the construction of legal concepts, elements, and relations that form a legal system.6 The authors explicitly define legal sciences as investigations into the validity and meaning of positive law.
According to Larenz and Canaris, legal science is normative in that it studies the norms of applicable law. However, its task is to describe these norms (that is, to explain their sense and the consequences that follow from them) rather than formulate norms that might compete with those established by the lawmaker. Still, the findings of legal science, unlike those of the natural sciences (szientistischen Wissenschaften), have a direct impact on the object described.7 It is in this sense that legal science and law – its object – are not fully independent from each other, with the findings of legal science often contributing to the shaping of the content of law, that is, its object.
The object and findings of legal science are, in principle, relativised to a particular legal order, although they need not be limited to it, as, for instance, in comparative studies or in critical analyses of positive law solutions undertaken from a moral or sociotechnical perspective.8 However, as pointed out by Larenz, the methods of legal science do not permit proposing better legal solutions; this is the province of legal policy, which is based on other sciences (psychology, biology, economics, medicine, empirical social research, and others).
A similar approach to the nature and scope of legal sciences is taken by Reinhold Zippelius. According to him, legal sciences comprise problems and methods of interpretation of law, including linguistic and non-linguistic arguments used to establish the sense of norms which belong to a particular system, issues related to the subsumption of a norm to facts and filling various gaps, as well as problems connected with the range of discretion (margin of decision) left by law to the subjects that apply it.9 Law is, as Zippelius puts it, a rule of conduct ←37 | 38→“clothed in words.”10 This means that semantic methods as well as problems of interpretation and elimination of ambiguity from the language of law are of paramount importance to legal studies. At the same time, only those rules of conduct can form law which are appropriately “carried out,” that is, those which stand a good chance of being put into practice. For this reason, the methodology of legal sciences must also take into account the problems of actualisation and transformation of legal texts into law in action.11 Moreover, law as a rule of conduct also serves the administration of justice, which means that legal methodology should make provision for cases which are not regulated and which need to be resolved on the basis of the axiological assumptions of the system.12
In a similar vein, Hans-Martin Pawlowski identifies the methodology of legal sciences with the entirety of ways in which jurists resolve the problems of validation, interpretation, and systematisation of applicable law. Thus, legal methodology is an instrument of legal dogmatics, but unlike the latter, it does not refer to particular problems but to the ways of handling specific types of recurrent legal-dogmatic issues in various branches of law.13
A similar perspective is taken by Franz Bydlinski, an author of often-cited publications on this subject.14 According to Bydlinski, the “proper” scope of legal sciences – in contrast to that of the history, sociology, or philosophy of law – involves legal-dogmatic efforts to understand and explain the content of norms which constitute various branches of law. In his view, methods of legal science should allow for finding rational and verifiable solutions to legal problems, that is, for establishing legal consequences of facts or types of facts. Both texts of regulations comprising a legal system and legally relevant facts are the raw material which legal science transforms – using the methods and tools it has developed – into appropriately justified legal statements (that is, solutions to legal problems).15
Bydlinski rejects two extreme positions on the nature of jurists’ research activity in relation to the content of applicable law. On the one hand, he dismisses the formal-deductive model of legal thinking, where the role of the jurist is limited to logically correct reasoning, as a result of which ready solutions to ←38 | 39→particular cases are extracted from legal material. The belief that the system of law contains the only appropriate solution to each legal problem is, according to Bydlinski, not verifiable and thus meaningless, at least as long as the truth of this claim cannot be demonstrated beyond doubt.
On the other hand, he rejects the “realistic-nihilistic” view that decisions made to solve legal problems are in fact random and arbitrary. One cannot claim that the content of regulations does impose any limits on such resolutions. The fact that in particular circumstances there are arguments in favour of various decisions does not imply that those decisions are equally well supported. Actually, in most cases, arguments invoked to support one are weightier than others, making it possible to rationally choose the solution which is better justified than other potentially competing options.16
Similarly, Veronique Champeil-Despalts identifies the methodology of legal sciences primarily with the analysis of the language of law and the language about law, including interpretation and systematisation of legal regulations and arguments.17 By contrast, Jan Smits, a Dutch legal scholar, distinguishes four types of research activities in the field of law: descriptive, normative, empirical, and theoretical. The descriptive approach consists in the doctrinal exposition and systematisation of applicable law, with its alternative models (that is, descriptive but non-doctrinal) including sociological, economic, historical, or comparatist descriptions of law. The empirical approach is very different in nature, focused as it is on the actual effects of law, while the theoretical approach seeks to explain what law is and in what ways it differs from other types of rules.18
In methodological terms, as Smits observes, the empirical approach to the study of law makes use of the methods of non-legal sciences, and theoretical investigations “tend to make use of the same methods and techniques of argumentation as the more positive fields of law” (combining them additionally with methods and findings of other fields of knowledge).19 Although traditionally, the descriptive-doctrinal approach has played the leading role in legal sciences, Smits makes a case for a thoroughgoing revision in this respect, towards a sharper focus on normative challenges: the search for scientific answers to the ←39 | 40→question about what the content of law ought to be like. This can be achieved using the “empirical-normative” method, where
existing jurisdictions are treated as laboratories for dealing with conflicting normative positions. They show which arguments exist in favor of, and against, any particular solution, which arguments have prevailed elsewhere and how the result has been received in that jurisdiction.
Thus, legal solutions (both statutory and adjudicatory) introduced in various legal orders (including the home legal order) are not treated as binding models of conduct, but as material on the basis of which it is possible to evaluate arguments that speak for or against a particular normative decision. It is the object and the goal of a scientific study of law to weigh the arguments and to find the best solution. The view of legal science as a strictly normative discipline, which uses the empirical-normative method proposed by Smits and focuses on the search for appropriate decisions in dealing with concrete social problems, involves a radical departure from the so-far taken approach to jurisprudence, according to which undertaking efforts to find strictly normative solutions is not its main objective.
Some authors have emphasised the need to distinguish the methodology of legal dogmatics on the one hand, and the methodology of the general theory of law on the other, with the latter focused mainly on the study of law as a phenomenon. This distinction is important because the methodological characteristics of dogmatic approaches within various legal disciplines are largely shaped by the fact that
we confine ourselves to solving the problems of interpretation and validation from the point of view of a particular legal system, accepting tacitly or explicitly its assumptions and treating them as axioms of our reasoning.20
It is the task of the jurist-dogmatist (but to a large extent also the lawyer-practitioner) to explain the decisions of the lawmaker by pointing out the intentions or goals behind them. In an attempt to provide a scientific description of law in the form it was given by the lawmaker, the scholar will strive
to determine the meaning of norms and the relations between them and to describe their origin and social function, but he or she will also show preference for some judgements and norms rather than others.21
Legal-dogmatic conclusions drawn from such considerations unavoidably go beyond a neutral description of their object and become dependent, to some extent, on the subjective views and judgement of the scholar. Such interference, in turn, must be treated “a foreign body in the system of scientific statements.”22
Still, the vast majority of statements that comprise the legal-dogmatic knowledge in various legal disciplines are objectively verifiable, and so they represent knowledge that can be regarded as scientific. Moreover, some non-relativised judgements and proposals put forward by scientists-dogmatists can be treated as hypotheses, to be verified – that is, confirmed or refuted – by future social practice connected with the operation of these regulations or legal institutions.23
According to these authors, law can be studied not only using dogmatic method, but also using system analysis and comparative methods. In the former case, the legal order is treated as a system composed of certain elements and the relations that obtain between them, which fulfils particular functions in the processing of input data and their transformation into output data.24 Legal comparative research, in turn, is regarded as a separate method (and not merely “an exemplifying comparison”) which is supposed to “construct theory both in the science of law and in the science of state,” “discover the laws of and tendencies in the evolution of legal-political institutions,” and “discover that which is cognitively most valuable, that is, the direction of changes and the law of changes.”25
Apart from legal dogmatics, a general theory of law requires some other methodological planes.26 Its multilevel nature – understood as the ontological complexity of law as an entity and the diversity of methods appropriate to study its different levels – is perhaps the most characteristic idea that emerged in the Polish philosophy of law in the twentieth century. Depending on the adopted approach, various authors distinguish such planes, or levels, as logical-linguistic, sociological, psychological, axiological, and, sometimes, historical and cybernetic (systemic).
On the logical-linguistic plane, a legal phenomenon is studied as a set of statements, primarily those by the lawmaker and included in texts of legal acts and other normative documents (that is, in the language of law).27 According to Jerzy ←41 | 42→Wróblewski, methods typical of the logical-linguistic level of analysis include both formal logics (classical, deontic, and normative logics) and non-formal, descriptivist analysis of legal argumentation and reasoning.
On the sociological plane, an analysis of a legal phenomenon refers to observation, statistical analysis, surveys, and experimental studies. The psychological plane calls for methods that are considered reliable in the field of psychology, including introspection (adopted, for example, by Leon Pietrażycki) and experimental methods developed by behaviourist psychology (interesting attempts in this respect were undertaken by Underhill Moore, one of the foremost representatives of American Legal Realism) and other major directions of psychological studies.
With regard to the axiological plane, usually distinguished in the multilevel approaches to law, Wróblewski observes that without adopting strong assumptions of metaethical cognitivism, the study of law on this level must in fact be limited to the study of evaluative statements – by the lawmaker, subjects of law, or other participants in the legal order. For this reason, such analyses are usually based on logical-linguistic methods.
The idea of the multilevel nature of legal phenomena and its theoretical and methodological consequences were received with reserve by Zygmunt Ziembiński. In his opinion, true methodological differences are related neither to the number of legal disciplines nor to the division of a legal phenomenon into various levels, but to the types of problems that are dealt with in the study of law, which can be of a dogmatic, sociotechnical, or theoretical nature. Problems of each of the types appear – although with varied frequency – in real research practice of both dogmatists in various branches of law and scholars who are concerned with the general theory of law.
Solving dogmatic problems consists in reconstructing fragments of a legal system on the basis of the approach to sources of law it adopts and law-making facts. Reconstructing the norms of conduct refers here to establishing who and in what circumstances may, may not, or must behave in a particular way under binding law.28 This is why, as Ziembiński points out, “a fully developed normative view of sources of law” must include not only validation rules which specify what acts are regarded as law-making in a given system, but also rules of legal exegesis (including interpretation, inference, and collision rules). Only if taken together can they be used to draw conclusions about the content of norms that ←42 | 43→are binding under the studied system, thus making it possible to make relevant decisions concerning the legal qualification of different types of conduct.
In terms of the methodological approach to solving dogmatic problems, legal science belongs to the humanities. It shares with them the assumption that subjects whose behaviour and artefacts it studies and seeks to explain are rational. This is also the starting point for history, anthropology, and other cultural sciences (such as literary studies).29 In all these disciplines, the rationality of actions that are to be explained is an idealising assumption which belongs to the “deep structure” of their methodologies, making it possible to ascribe certain intentions, beliefs, and goals to subjects whose actions form the empirical basis for further conclusions.
Founded on the assumption of the lawmaker’s rationality, various branches of legal sciences aim at a reconstruction of an orderly, internally consistent system of norms, clear, complete, and free from conflicts, and at the same time well based in the coherent system of values ascribed to the lawmaker and in the known effects produced by the obligation, prohibition, or permission to act in a particular way. In this reconstruction, legal scholars refer to the entirety of facts which in a given legal order are considered as law-making.30 In juristic practice, this process also allows for adaptive interpretation, which adjusts the content of law to concrete, current problems, ascribing such decisions to the intention of the lawmaker rather than the interpreter.31
From this perspective, as Wróblewski remarks, jurisprudence can be seen as necessarily normative insofar as it describes norms, that is, the content of models of conduct. However, its task is not normative with regard to establishing such models, although to some extent, legal science does evaluate and contribute to the formation of norms it aims to describe. The assumption of the lawmaker’s rationality (accepted both by the jurist-dogmatist and by the jurist-practitioner) makes it possible to ascribe the results of interpretation directly to the lawmaker, where the lawmaker is a construct rather persons or institutions who are authors of the studied fragments of a legal text.32←43 | 44→
Apart from dogmatic problems (related to the content of law-making facts), legal sciences deal with sociotechnical and theoretical issues. The former comprise questions about the ways to achieve expected social goals through establishing and implementing law. They appear in legal dogmatics in particular when it is necessary to reduce the margin of decision left by law or to formulate proposals de lege ferenda on the basis of an analysis of current law. Theoretical problems, in turn, concern
the formulation and resolution of statements which comprise the theoretical description of legal phenomena, analysed both from the formal, linguistic perspective (on the “logical-linguistic plane”) and from the real-life, extralinguistic perspective (for example, on the “sociological,” “psychological,” or “economic plane”).33
Dogmatic problems are the core of all branches of legal sciences. Sociotechnical problems are their natural extension, as they are connected with the search for the best possible shape of law in a specific legal domain, so that it can bring the effects intended by the lawmaker. However, legal sciences are by no means limited to dogmatic and sociotechnical issues; similarly, theoretical issues are not the exclusive domain of the general theory of law.34 In practice, the range of problems addressed by particular branches of legal sciences includes also relevant theoretical issues, and the general theory of law does not ignore dogmatic and sociotechnical issues.35
Thus, the choice of research tools depends primarily on the type of problem that is to be solved, and not on the division into disciplines, which is, to some extent, conventional. Specific methodological challenges in various branches of legal sciences result rather from the relative prominence of various types of research problems they address. Thus, individual branches of legal sciences are dominated by dogmatic questions, the remaining issues being secondary and ancillary; in the general theory of law, the proportion is reversed. Although Ziembiński does not reject the concept of various “research planes” of legal studies, he considers it useful only for theoretical considerations and regards it as a primarily methodological tool. According to him,
distinguishing between various research planes within the theoretical subject matter of jurisprudence is methodologically quite significant, as it helps to determine from which ←44 | 45→sciences appropriate research methods can be borrowed and to consider what modifications should be introduced in the application of these methods to the theoretical problems addressed by legal sciences.36
At the same time, Ziembiński argues against increasing the number of such planes without necessity or attributing any ontological status to them; rather, he treats them as linguistic (formal) and real-life (sociological and psychological) aspects of a legal phenomenon.37
Still other assumptions are adopted by authors of a volume based on a symposium on the methodological diversity in legal studies.38 Its aim is to “draw attention to the wide range of methodological problems and the need to adopt comprehensive approaches in their discussion.” In particular, the authors recognise the need to oppose “the trend to apply methods which are currently in vogue,” such as “the strong tendency to overestimate the sociological approach in legal sciences,” “the practice to exaggerate logical-linguistic problems,” and “the firmly established trend to treat the traditional dogmatic approach as the only legitimate approach to the study of law.”39 Among the methods of legal sciences, the authors distinguish and discuss the following approaches: historical, comparative, logical-linguistic, sociological, psychological, statistical, empirical, and cybernetic.40
One of the broadest overviews of the methodological issues in legal sciences has been proposed in one of the latest contributions to this field in the Polish literature by Jerzy Stelmach and Bartosz Brożek. The authors distinguish three main approaches to research methods in law.41 The first consists in rejecting the view that there are any reliable methods used in legal sciences, as exemplified by Kirchmann, the most radical directions in legal realism (e.g., Joseph Hutcheson’s intuitionism), the school of free law, or the movement of critical legal studies. The second – the heteronomous perspective – points to the fact ←45 | 46→that in their research practice, legal scholars use methods developed within other fields of knowledge. Examples of this approach include Petrażycki, the law and economics school of thought, and the analytic philosophy of law, which refers to hard and soft methods of language analysis. The third approach assumes that law relies on autonomous research methods, characteristic specifically of legal sciences. Stelmach and Brożek include here Savigny’s historical school and representatives of the nineteenth-century Begriffsjurisprudenz.
According to Stelmach and Brożek, both methodological nihilism and the belief that there are autonomous research methods in law cannot be defended and must be rejected. Tools of legal sciences are adaptations of research methods developed within other fields of knowledge, adjusted to the specific needs of law. Thus, research practice in legal studies is marked by heteronomy and methodological pluralism, and the adaptation of various methods to law may serve the needs of jurists-practitioners, jurists-dogmatists, or jurists-theoreticians. At the same time, there is no hierarchy of methods used by legal scholars; moreover, decisions concerning the choice of method and its application are made ad hoc, often prompted merely by “habits” of individual interpreters.42 Among research methods used in law, the authors enumerate logic (including the tools developed by non-classical logics, aspiring to the status of the logic of legal discourse), analysis (linguistic, economic, etc.), argumentation (discourse theory, topoi theory, new rhetoric, etc.), and hermeneutics (especially as an epistemological approach in the interpretation of texts, including legal texts).43
This brief and rather selective survey demonstrates the vast diversity in the approaches to the methodology of legal sciences and the lack of broad agreement on even the most fundamental issues concerning the nature of jurisprudence and the methods of solving problems it encounters. This situation hinders any effective discussion of the need to naturalise legal sciences and of the prospects and usefulness of reflection on law that refers to ontological and methodological assumptions of naturalism, as the findings obtained by legal scholars depend directly on the adopted understanding of jurisprudence, the type of problems that form the core of its object of study, and the research purposes.
For this reason, it seems necessary to introduce some clarifying distinctions within legal sciences and then, in their light, to identify major differences in the “naturalisation potential” that follow from two fundamentally incompatible ←46 | 47→models of scientific reflection on law. This picture is further complicated by the variety of methodological approaches within each of the models; however, I will argue that this diversity is secondary in relation to the essential contrast between the view of jurisprudence as a legal science and as a science of law. Still, various methodological approaches proposed within these two views of jurisprudence also give rise to considerable differences in the validity of naturalisation appeals and in the possible scope of such naturalisation.
1See J.M. Kelly, A Short History of Western Legal Theory (Oxford: Clarendon Press, 1992).
2C. Langdell, “The Law Library,” 49 Annual Reports of the President and Treasurer of Harvard College 1873–74 (1875), pp. 63, 67, quoted in R. Danner, “Law Libraries and Laboratories: The Legacies of Langdell and his Metaphor,” Law Library Journal 107:1 (2015), p. 8.
3J. von Kirchmann, Die Wertlosigkeit der Jurisprudenz als Wissenschaft. Ein Vortrag gehalten in der Juristischen Gesellschaft zu Berlin (Berlin, 1848).
4K. Larenz, Über die Unentbehrlichkeit der Jurisprudenz als Wissenschaft (Berlin: Walter de Gruyter & Co., 1966), p. 11.
5S. Ehrlich, “Kilka uwag w sprawie metodologii nauk prawnych” [Comments on the Methodology of Legal Sciences], Państwo i Prawo [State and Law] 11 (1964), pp. 645f.
6K. Larenz and R. Canaris, Methodenlehre der Rechtwissenschaft (Heidelberg–Berlin: Springer, 1992), passim.
7Ibid., p. 82.
8Ibid., p. 81.
9R. Zippelius, Juristische Methodenlehre (München: Beck, 1994), passim.
10Ibid., p. 1.
11Ibid., p. 7.
12Ibid., pp. 8f and 58f.
13H.M. Pawlowski, Methodenlehre für Juristen. Theorie der Norm und des Gesetzes (Heidelberg: C.F. Müller, 1999), p. 12.
14F. Bydlinski, Grundzüge der juristischen Methodenlehre (Wien: UTB GmbH, 2012).
15Ibid., p. 17.
16Ibid., p. 22.
17V. Champeil-Desplats, Methodologies du Droit et des Sciences du Droit (Paris: Dalloz, 2014), passim.
18J.M. Smits, The Mind and Method of the Legal Academic (Cheltenham–Northampton: Edward Elgar Publishing, 2012), pp. 9f.
19Ibid., pp. 31, 34.
20J. Kowalski, W. Lamentowicz, and P. Winczorek, Teoria państwa i prawa [Theory of State and Law] (Warszawa: PWN, 1986), p. 29.
21Ibid., p. 31.
23Ibid., p. 40.
24Ibid., pp. 35–37.
25Ibid., p. 38.
26Ibid., pp. 24f.
27W. Lang, J. Wróblewski, K. Opałek, Teoria państwa i prawa [Theory of State and Law] (Warszawa: PWN, 1979), pp. 30f.
28Z. Ziembiński, Metodologiczne zagadnienia prawoznawstwa [Methodological Issues of Jurisprudence (Warszawa: PWN, 1974), pp. 104f.
29L. Nowak, Próba metodologicznej charakterystyki prawoznawstwa [An Attempt at a Methodological Characterization of Jurisprudence] (Poznań: Uniwersytet im. Adama Mickiewicza, 1968), p. 74.
30Ibid., p. 121.
31As pointed out by L. Nowak, jurists who carry out institutionalised social roles in the process of application of law “pretend that the amendments they introduce to law are already included in it, and that the jurists’ task is not to rectify law but to uncover ‘its true meaning’;” Nowak, Próba…, p. 73.
32J. Wróblewski, W. Lang, S. Zawadzki, Teoria państwa i prawa [Theory of State and Law] (Warszawa: PWN, 1979), p. 32.
33Z. Ziembiński, Szkice z metodologii szczegółowych nauk prawnych [Sketches in the Methodology of Particular Legal Sciences] (Warszawa–Poznań: Polska Akademia Nauk, 1983), p. 7.
34Ibid., p. 37.
35Z. Ziembiński, in Z. Ziembiński, A. Redelbach, and S. Wronkowska, Zarys teorii państwa i prawa [An Outline of the Theory of State and Law] (Warszawa: PWN, 1993), pp. 17–19.
36Ziembiński, Metodologiczne zagadnienia…, p. 80.
37Ibid., p. 82; Ziembiński, in Ziembiński, Redelbach, Wronkowska, Zarys…, pp. 10–14.
38Metody badania prawa [Methods of Studying Law], ed. A. Łopatka (Warszawa–Wrocław–Kraków–Gdańsk: Zakład Narodowy im. Ossolińskich, 1973).
39A. Łopatka, “Wprowadzenie,” in Metody badania prawa…, p. 7.
40The historical approach in legal studies is discussed by H. Olszewski; the comparative approach, by M Rybicki; the logical-linguistic approach, by J. Wróblewski; the sociological and psychological approaches, by M. Borucka-Arctowa, statistical methods, by Z. Rogoziński; the empirical approach, by W. Sokolewicz and S. Zawadzki; and the cybernetic approach, by F. Studnicki.
41J. Stelmach and B. Brożek, Metody prawnicze [Legal Methods] (Kraków: Zakamycze, 2004), pp. 11f.
42Ibid., p. 37.
The brief survey of literature on the methodological assumptions of legal sciences presented in Chapter 1 reveals such an amount of diversity and controversy in this area that one cannot help but think that jurisprudence has not yet reached the stage of development commonly described as “bringing method to our madness.” One of the principal causes of this situation is, I believe, underestimating a fundamental distinction that already appeared in the well-known dispute between Eugen Ehrlich and Hans Kelsen in the beginning of the twentieth century, and that later featured in various directions of twentieth-century juristic thought; a distinction which is of particular significance for the way the model, nature, and methodology of legal sciences are construed.
This distinction refers to the difference between a science determining the content of binding laws on the one hand, and a science of law understood as an empirical phenomenon and part of a certain cultural reality on the other (that is, as a certain complex social practice). In the former understanding of jurisprudence, research results in principle concern what acts are prohibited, obligatory, permitted, etc. according to applicable law.1 In the latter, in turn, the results concern the origin and organisation of a particular legal order as well as its operation, including, especially, psychological and social processes connected with establishing, interpretation, application, and observance of regulations. These two research ventures differ essentially in their nature, goals, and function and in the methodology they adopt. In this sense, there is no one jurisprudence with its set of methods but two separate approaches to the study of law, each with its own characteristic tasks, methods, and problems. I will argue that they also differ fundamentally in their openness to possible calls for naturalisation, which are sometimes voiced with regard to the field of legal studies.
This methodological landscape of jurisprudence is further complicated by the fact that within these two basic models of legal sciences, there exist many competing (and partly complementary) methodological orientations. They indicate not only what, according to a given author, the “appropriate” way of understanding jurisprudence is, but also what its statements refer to and how they ←49 | 50→are to be justified and verified. Descriptive considerations (or such that aim at a reconstruction of a model of jurisprudence within one of the two approaches) often intertwine with strictly normative observations, and in this respect, the methodological reflection on legal sciences shows no advance on the debates that were going on in twentieth-century general philosophy of science outlined above.
In the first, 1913 edition of the work that laid the foundations for the sociology of law, Eugen Ehrlich, one of the founders of the new field, observes:
In jurisprudence… the distinction between the theoretical science of law (Rechtswissenschaft) and the practical science of law (Rechtslehre), i.e. practical juristic science, is being made only just now… This distinction… is the basis of an independent science of law, whose purpose is not to subserve practical ends but to serve pure knowledge, which is concerned not with words but with facts.2
Ehrlich strives to demonstrate that it is only through the emancipation of research-oriented studies of law and dissociation from the so far dominant dogmatic legal model of knowledge, accumulated for its immediate practical usability, that jurisprudence can finally rest on truly scientific foundations. This is the requirement that legal sciences must meet to recover from a methodological setback. Ehrlich argues, quoting Anton Menger, that compared to other sciences, the condition of jurisprudence resembles
an out-of-the-way town in the provinces, where the discarded fashions of the metropolis are being worn as novelties.3
Limiting jurisprudence to practical knowledge of the content of applicable law produces deplorable results. It turns legal sciences into a field comparable to medicine without biological foundations or materials engineering focused on concrete problems but not equipped with appropriate materials science knowledge. The greatest advance legal dogmatics had ever made, Ehrlich argues, fell on the time when it turned to history, because the history of law was the only juristic discipline concerned with the scientific study of fragments of legal reality. However, the central discipline, legal dogmatics, remains predominantly practical and investigates law with a view to passing sentences, counselling, winning lawsuits, or preparing documents indispensable in legal transactions.←50 | 51→
This deplorable condition of jurisprudence, Ehrlich continues, results from the fact that it is not based on a separate, autonomous science of law, a science whose objective is not immediate practical usability in legal practice but juristic basic research, aiming at understanding and explaining law as a special type of social phenomenon, together with its mechanisms and perceivable regularities. On this understanding, the main task of the science of law is not acquiring practical skills related to current legal practice but developing the knowledge of law as a value in itself, just as in any other basic science.4 This is not to say that such knowledge cannot ultimately become a useful tool for improving reality, helping to solve specific problems more effectively. Still, its application remains an indirect, secondary result of an activity whose main objective – accumulating knowledge – stems primarily from the disinterested cognitive curiosity of scholars who study a particular field.
Limiting legal studies to practically oriented jurisprudence results in the lack of a clearly delimited scientific concept of law and, in consequence, of appropriate methods of its study. From the perspective of jurists in their social roles and their practice, what counts is the norm to which they refer in argumentation as judges, solicitors, or prosecutors. However, this kind of “lawyers’ law” (Juristenrecht) not only does not do justice to the complexity of the matter but also misses its essence. The kernel of legal reality, Ehrlich claims, lies somewhere else. It rests in those social rules which actually give shape to specific legal relations, such as transactions of exchange, compensations, undertaking and continuing cooperation, and family relations.
According to Ehrlich, what is crucial for a scientifically appropriate understanding of the legal order is the concept of “living law” (Lebendesrecht), that is, a set of rules which shape human behaviour, develop naturally and spontaneously, and are obeyed. Living law should be distinguished from “decision norms” (Entscheidungsnormen), that is, rules of adjudication and processing of claims by state organs, which come into play when the natural operation of living law fails and appropriate institutions must interfere. Decision norms are indirect emanations of living law; however, their content is transformed into general, abstract laws expressed in linguistic formulas, which are then used in processing other cases. In this way, decision norms fossilise the ever-evolving rules of living law, inhibiting rather than facilitating the development of legal order.
For Ehrlich, the distinction between the social reality of living law, on the one hand, and abstract decision norms which were the focus of lawyers’ law, on ←51 | 52→the other, was the starting point for a sociology of law. Only a sociology of law was able to provide a solid basis for applied knowledge about the ways in which legislation and legal practice can effectively influence social life and solve problems that arise there. However, distinguishing dogmatic studies of the content of law and its normative consequences from the more basic, knowledge-generating science of law as a social phenomenon appears much more fundamental and universal in nature, and indeed independent of the concept of living law or the sociologically oriented science of law that Ehrlich proposed. It points to a difference which should be acknowledged, as it influences the way in which the significance, objectives, and methods of the study of law are understood in various approaches to legal sciences.
Many of these approaches understand juristic knowledge as knowledge of the content of legal norms, which is prerequisite to ensuring that they are properly applied and obeyed and, hence, to ensuring that the legal order functions appropriately. Other approaches rest on the assumption that it is the task of a legal scholar to describe the way a legal order functions “from outside,” that is, as seen by an observer who does not participate in or share the responsibility for the phenomena that he or she investigates. On this view, the science of law as a set of facts that comprise a particular legal order is external in relation to that order. This kind of description is made from a standpoint that might be poetically referred to as “with a cold apple in one’s hand on a narrow chair with a view of the ant-hill and the clock’s dial.”5
The perspective assumed by this external science of law is radically different from that of legal science, which is itself part of a legal order, prepares the content of binding norms, and helps remove doubts concerning their interpretation and application. Statements of legal science are inherently aimed at influencing the operation of a legal order. They indicate how the currently binding norms are to be interpreted and in what way they are to determine the content of legal decisions that refer to them. By contrast, the perspective assumed by the science of law can be compared to an approach taken by a scholar who describes laws that are no longer in force (which may be the reason why, for Ehrlich, the model branch of scientific jurisprudence was the history of law) or laws of another country. Thus, in this case, the scholar is not a participant whose statements offer both a description of law and an indication of how it should be understood and applied within this system.←52 | 53→
The idea of distinguishing practical legal science from the knowledge-oriented science of law, introduced by Ehrlich, was taken up in a variety of forms by twentieth-century legal sciences.6 Its principal variation was the development of the sociology and general theory of law, pursued as investigations into the very nature of the phenomenon and the key concepts which describe the legal order (e.g., norms, interpretation, sources, force, or legal system), irrespective of the concrete models of behaviour which it comprises at a particular place and time. In the analytic theory of law, the conceptual tool which may help capture this difference is the distinction between external and internal legal statements, proposed several decades after Ehrlich’s death by Herbert L. A. Hart.
In one of the best-known passages of The Concept of Law, Hart points out that a social rule “affords an opportunity” for two very different types of assertions, made from the “external” or “internal” points of view. Hart explains the difference in the following way:
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- 2021 (June)
- law methodology naturalism philosophy science interpretation
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2021. 214 pp.