What Is Legal in Science

1One of the most recurrent discussions in legal theory debates – at least in the legal culture of civil law – concerns the method of legal study. In fact, many of the most important contributions to twentieth-century legal theory can be read in this key. To cite just a few famous examples: Kelsen asserts that the intention of his pure theory is to provide a method “for raising [jurisprudence] to the level of a true science, a human science”;1 Ross states that “the central idea of [On Law and Justice] is to bring empirical principles to their final conclusions in the field of law”;2 Hart is of the view that the notion of law “deals with clarification.” of the general framework of legal thought”;3 and the concept of normative system of Alchourrón and Bulygin appears as an idealization of what positive law specialists do.4 A scientific law always applies to a physical system under repeated conditions, and it implies that there is a causal relationship between the elements of the system. Factual and well-supported claims such as “mercury is liquid at standard temperature and pressure” are considered too specific to be considered scientific law. A central problem in the philosophy of science, which dates back to David Hume, is the distinction between causal relations (as implicit by laws) and principles arising from constant conjunction. [6] 58 This does not mean that jurists must seek a purpose in the law or in the intentions of the legislature, or that some sociological, psychological or economic inquiry can determine the best state of affairs. On the contrary, the technological model of legal dogmatics requires jurists to select a situation as the best – make this choice explicit – and provide evidence that a particular legal solution is the appropriate solution to achieve that state. In science, claims of impossibility are widely accepted as extremely likely, rather than being considered indisputable. The basis of this strong acceptance is a combination of extensive evidence that something is not happening, combined with an underlying theory that makes very good predictions whose assumptions logically lead to the conclusion that something is impossible. Although a scientific claim of impossibility can never be proven absolutely, it could be refuted by observing a single counterexample. Such a counter-example would require a re-examination of the assumptions underlying the theory that implied impossibility. Philosophical reasons in general, whether epistemological, ontological or metaethical, such as positions on what counts as justified knowledge, what entities exist, the truth values of moral statements, etc.

Newton`s Law is useful to scientists in that astrophysicists can use this centuries-old law to land robots on Mars. But that doesn`t explain how gravity works or what it is. Similarly, Mendel`s law of independent assortment describes how different traits are passed from parents to offspring, not how or why it happens,” Coppinger said. According to the second argument, the activity of case law simply does not have to affect legal practice. In response to this argument, two other arguments can be put forward: first, it is almost impossible for the activity of lawyers to have no influence on legal practice if it is not concealed; So, secondly, it would be possible to ask why it is important to study the content of the law, that is, to make jurisprudence (ampio sensu). 48 In that regard, it should be borne in mind that, if one of the tasks of the case-law were to eliminate logical deficiencies in the system, normativist case-law would also be a normative discipline because rules would be applied. 36 However, according to the defenders of normativist case-law, the description of rules is not the only activity that lawyers must develop. This first phase would be accompanied by a second systematization.46 However, “systematization” can be understood to mean at least three different types of activities: 49 Among the defenders of the argumentatist model, three dimensions of legal reasoning can be distinguished. In extreme synthesis: the first approach deals with the logical validity of arguments, the second with their persuasive power, while the third deals specifically with the material (or content-related) plausibility of arguments. The peculiarity of this material dimension of legal reasoning is that it is possible to see in advance what are the sufficient conditions that a thesis must meet in order to finally be considered as the best possible legal answer. In other words, determining the best response to the legal problem is not a matter that can be reduced to the application of a set of rules. Finding the best possible answer is an activity guided by a model of rationality (and objectivity63) different from that which governs our theoretical or cognitive activities: phronesis or practical reason.

19 Over-reliance on the merits of conceptual analysis in this area leads to two problems being overlooked. The first is that if our intention is to make a description of what lawyers do (i.e. define “jurisprudence” on the basis of a legal concept – will give a distorted picture of their activity, because not all lawyers use or assume the same legal term, and researchers do not systematically use the same legal term in all their activities. Second, if the goal is to provide guidance on what lawyers should do, then it would be necessary to provide normative arguments, not just a definition.33 17 However, these definitions of “jurisprudence” are problematic because they start from a particular legal concept – or rather are based on it. The fact that a definition of “case-law” presupposes a legal concept is, of course, not open to dispute. What is reprehensible now is to make the concept of “jurisprudence” dependent on a certain conception of law and to draw conclusions from this analysis as to what positive law scholars do or should do. For example: 29 This consideration relates to the character of these models, that is, although they have been modelled using different doctrines about what lawyers should do, they have heuristic value in the way they organize the various teachings of jurisprudence ampio sensu. In addition, these models are useful for analysing the actual activities carried out by lawyers. With regard to reconstructions of ideal types, neither all normative teaching of jurisprudence nor the work of all jurists correspond exactly to one of these models.39 37 This is not the usual use of this expression. However, I prefer to use this expression because, in many of its possible meanings, it refers to a number of methods used to generate legal responses to cases of indeterminacy.

For a discussion of the use of this term, see Álvaro Núñez Vaquero, Dogmática juridical, Revista Eunomía (2013) 4 (forthcoming). 89 positions like these are not necessarily contradictory. But why should moral or ethical-political criteria determine the methodological choice? Since the activity of lawyers must be relevant in the actions of legal actors – that is, the result of their activity would be taken into account as a reason – such activity must have a moral basis. The reason for this is that the activity of legal actors – their formation and the creation, interpretation and application of laws – influences ethical, political or moral goods (life, liberty, equality, autonomy, political stability, etc.), so that the results of legal scholars` research work influence these moral goods in the same way. Since lawyers influence – albeit indirectly – the treatment of moral goods protected by the ordinance, the justification of the method – for reasons of consistency – must refer to moral grounds. 80 Here, I will focus on Argentine critical jurisprudence and critical theory. I have examined the reconstruction of the critical model of legal dogmatics in these two movements to the detriment of others such as the Uso Alternativo del Diritto or the Critique of Law, for several reasons: the first case, because Critical Legal Studies – although there are few left today – remain a reference for those who want to practice critical jurisprudence, secondly, because of the relevance of Argentina`s contributions in this area and, finally, because the heterogeneity of critical legal theory is so great that, for the sake of clarity, we should focus on some of them. Nor will I consider other Latin American authors whose theses are so clearly positioned within the framework of critical currents, such as Eros Grau or Oscar Correa. 57 These authors are often attributed to a vaguely particularistic conception of moral issues, that is, the thesis that what is considered a moral reason in one case cannot be relevant in another similar case.73 However, the thesis of these authors is much more plausible74 if one reconstructs the model of practical rationality that underlies their work. like consequentialist ethics. In other words, ethics – utilitarianism is the best known of these – which holds that the only criterion for moral qualification of an action is that it is appropriate or contributes to the best possible state.75 Thus, statements that morally qualify behavior, since they are indirectly related to facts and causal relationships, lead to a truth value.