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Naturalism and the Frontiers of Legal Science

by Tomasz Pietrzykowski (Author)
Monographs 214 Pages
Series: Dia-Logos, Volume 29

Summary

The essay addresses one of the main challenges to the contemporary methodology of the law, namely a new wave of naturalistic approaches that follow the rapid progress in the studies of the mind as a basis for psychological, behavioral, and cultural phenomena. The book aims to address the extent to which new developments of a naturalistic worldview affect the methodological foundations of studying and explaining the law, and distinguishes two fundamentally different models of scientific inquiry. Interpreting legal texts has to remain an anti-naturalistic, hermeneutic enterprise, conceiving law as a combination of causally related facts. As such, its scientific status depends mostly on its ability to become a part of an interdisciplinary web of naturalistic explanations of reality.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • 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
  • Bibliography
  • Index
  • Series index

Introduction: The background of methodological discussions in legal sciences

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

←10 | 11→

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

Details

Pages
214
ISBN (PDF)
9783631853306
ISBN (ePUB)
9783631853313
ISBN (MOBI)
9783631853320
ISBN (Hardcover)
9783631844984
Language
English
Publication date
2021 (June)
Tags
law methodology naturalism philosophy science interpretation
Published
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2021. 214 pp.

Biographical notes

Tomasz Pietrzykowski (Author)

Tomasz Pietrzykowski is professor of legal theory and philosophy of law at the University of Silesia in Katowice. He is the author of numerous books and articles on various aspects of personhood, animal rights, and others. He is a practicing lawyer and the former head of Silesian governmental administration.

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Title: Naturalism and the Frontiers of Legal Science