Objectivity of Legal Science
From IVR encyclopedie
Science by definition is objective. It aims at true statements, or at true or adequate theories, about a particular subject. The issue of the objectivity of legal science accordingly is whether what is called "legal science" complies with standards of scientific objectivity, that is, whether it deserves its name. However, it is not clear what exactly should be understood by "legal science". Legal disciplines are legal doctrine but also e.g. legal philosophy, legal theory, legal sociology, and legal history. Without doubt legal sociology and analytical legal theory, aiming at purely empirical or analytical investigation, qualify as legal sciences. This also holds for legal history, although interpretative and ideological elements may raise some doubts. On the other hand, legal philosophy usually is not called a science, as its main subjects are normative issues of law, morality and justice, although philosophical theories claim to be objectively valid. When the issue of the objectivity of legal science is raised one usually refers to legal doctrine, that is the systematic analysis of the positive law of a particular legal system. Legal doctrine is at the centre of the various legal disciplines, but there are doubts whether it can be regarded as a science. The development and qualification of legal doctrine as a science is peculiar to the continental legal tradition, in contrast to the anglo-american one. Even in continental systems it is not unusual to contrast legal doctrine as a technique of jurisprudence, to science. As jurisprudence, it aims at developing practical techniques and adequate solutions of legal problems rather than at the construction of scientific theories. Nevertheless, I will take legal doctrine to be the core case of legal science, and will discuss its objectivity. This is an important issue for the self-understanding of jurists, with practical consequences for legal education and for the legitimation of adjudication based on the recognition of existing law.
The main issues of legal doctrine are the identification, interpretation and systematization of positive law, which might seem to be descriptive and analytical issues. However, the aim of legal doctrine to give guidance to legal practice goes beyond pure systematic analysis of the law. Moreover, the normative character of law, that is, its claim to provide a common system of norms binding on all its addressees, puts in doubt whether even the identification of law is possible in a purely descriptive manner. Another problem is the indeterminacy of law. It requires interpretation, and this again might require normative conceptions of what would be the best continuation of existing legal practice. Finally, one might doubt whether the construction of legal theories systematizing positive law can be normatively neutral. Hence, the objectivity of legal doctrine is put in doubt by its practical aspirations as well as by the normative character of law, the indeterminacy of law, and the gap between the law as a normative system and theories about the law.
1. IDENTIFICATION OF LAW
Scientific objectivity presupposes an object about which one can make true statements. As the subject matter of legal doctrine is the law, its objectivity depends on the objectivity of law. Only insofar as law is objective, it is a suitable object for legal doctrine as a science. However, as law is not a determinate object but stated in form of internal normative judgements on the basis justificatory procedures, it is not in all respects a suitable object of scientific investigation.
There are various options to preserve objectivity of legal science in face of the normative and value-laden character of law. One is a concept of legal science which avoids normative or evaluative issues by reducing to empirical facts. Another option is the demonstration that normative theories of law can be objective. Alternatively, one might accept that law as a normative, action-guiding system is not a completely objective phenomen and, accordingly, legal doctrine cannot be a purely objective legal science.
Reductionism is found in conceptions of legal realism, reducing law either to legal practice, as by American legal realism (HOLMES, GRAY, FRANK), or to mental attitudes, as suggested by Scandinavian legal realism (HÄGERSTRÖM, OLIVECRONA, the early A. ROSS). Both approaches are, however, not satisfactory because they cannot account for the normative character of law and its action-guiding function, in particular with regard to the decisions of the courts.
KELSEN's "Pure Theory of Law" suggests a legal science which acknowledges at the same time the normative character of law and the restriction to cognitive themes. The normative character of law is based on the idea of a basic norm (Grundnorm) which must be presupposed when making legal statements. However, the structure and content of law is exclusively determined by empirical-analytical criteria of authoritative enactment and - in some respects- social effectiveness. A problem of Kelsens's approach is that if law is completely identified by empirical-analytical criteria, an empirical analysis of law must be isomorphic to a theory which interprets the legal material as a normative system by means of the basic norm. Then, however, there is no reason why one should insist that legal science is a science of norms, and not of law as a social fact.
This point was made by H.L.A. HART holding that Kelsen's "Grundnorm" is redundant. Hart develops a descriptive-empirical theory of law which suggests that the existence of law is a matter of fact. However, he acknowledges the importance of the internal point of view of legal officials who apply and enforce the law and who must, at least to some extent, have a normative attitude to the law. This normative attitude is, however, only described by theories of law. The critique against Hart, put forward most prominently by DWORKIN, is that law is not a phenomenon that could be adequately conceived by purely descriptive-empirical investigation. Law includes normative elements, and theories of law must be normative theories.
Hence, one should dismiss the attempt to make legal doctrince objective by restricting the concept of law in a way that includes only descriptive-empirical elements of law. Legal doctrine, and as well legal theory, must acknowledge the normative character of law in order to be realistic.
According to normative theories of law, legal doctrine must elaborate normative theories. The problem is whether normative theories can be scientific. The ordinary usage of the term "scientific" seems to exclude this. However, if science is essentially characterised as an enterprise to gain knowledge, and to develop theories which are objectively valid, then one may ask whether normative theories of law can be objectively valid, and do provide knowledge about the law. This is the problem of moral cognitivism, and of the rational justification of norms. Although claims of ethical skepticism and ethical relativism that there are no objectively valid norms at all, may be exaggerated, claims that a moral reality exists which allowed to make objectively valid statements although seems to be unwarranted. A rational justification of norms may be possible in some cases, but its scope is limited.
Consequently, it seems most plausible the assumption that legal doctrine does not have the character of a pure, objective science. This does not eliminate the task of elaborating most precisely which parts of legal doctrine can claim objective validity, and which present merely individual normative claims of its author. However, the practical dimension of legal doctrine requires to make normative claims where valid law cannot be established objectively. In contrast, legal doctrine can be objective only insofar as law can be shown to be objective.
2. OBJECTIVITY OF LEGAL INTERPRETATION
One line of legal interpretation take interpretive theories of law which integrate issues of semantic interpretation and the construction of normative theories, suggested in particular by DWORKIN. An alternative is to distinguish between the ascription of legal validity to norms and the semantic interpretation of established legal norms. For reasons of analytical clarity, the second option seems to be preferable.
The objectivity of legal interpretation is denied by linguistic theories which claim that there is no objective meaning. Such theories are hardly plausible, as successful communication obviously is in general possible. Therefore, something like an objective, intersubjectively determined meaning seems to exist, although there are cases where there is no commonly shared interpretation.
However, there are controversies about the correct conception of semantic meaning. A traditional view, that the meaning of concepts includes sense and reference (extension), that its sense includes criteria shared by competent speakers, and that the extension of a concept is determined by these criteria, is the object of critique because it cannot give an adequate explication of controversies about semantic meaning. In case of dispute, this conception had to conclude that no semantic meaning existed.
A competing conception tries to apply the semantics developed by Kripke and Putnam (causal semantics or K-P semantics) to problems of legal interpretation (cf. STAVROPOULOS 1996). It suggests that the meaning of concepts is a substantial issues, depending on theory and not, or not exclusively, on convention. The content of concepts depends on the properties instances of applications actually have in common and, thus, on theory and substantive argument. It is object-dependent, not merely conceptual. Classification depends on theory and, hence, challenge and revision is always possible. Also substantive disagreement becomes possible. Alternatively, the conception of meaning proposed by Brandom is referred to, integrating conventional, intentional, and referential aspects of meaning (cf. KLATT 2004) and explaining as well the objectivity, the the normativity, and referential character of meaning.
Hence, one can sustain the claim of the objectivity of semantic interpretation, at least in some cases. On the other hand, a theory of semantic meaning does not suffice for legal interpretation. Legal interpretation is part of the application of law, which aims at establishing definitive norms with regard to particular cases. Thus, it must be integrated in a normative theory of legal argumentation. The relation of semantic arguments to substantial normative arguments in legal argumentation needs clarification, not only in cases of semantic indeterminacy but also in cases where a clear linguistic meaning conflicts with normative legal arguments. The objectivity of legal interpretation depends ultimately on normative legal argumentation, and hence on the general theory of legal discourse (cf. ALEXY 1989). Semantic arguments may be regarded as relevant data within such a theory.
3. OBJECTIVITY OF LEGAL THEORY CONSTRUCTION
Legal doctrine includes not only semantic interpretation of legal concepts but also normative conceptions as interpretation of positive law, like for example the doctrine that basic rights interpreted as objective principles influence the entire legal system. The objectivity of such interpretations depends partly on the objective validity of normative theories. Another source of objectivity may be seen in the coherence of such conceptions with the legal system.
Coherence includes various respects. It may refer to a relation of fit with pretheoretical or external data, in particular legal norms and decisions. The relation of pretheoretical stage and theory is a feature of Dworkin's conception of law as integrity (DWORKIN 1986). Dworkin distinguishes pre-interpretive stage and interpretive stage of legal reasoning. This hermeneutic process may be regarded as a device of objectivation.
Alternatively, coherence may be seen as an internal feature of theories, comprising criteria of consistency, comprehensiveness, and the mutual support of different parts of the theory. Coherence as an internal feature of theories may be seen as an indicator of the objective validity of a theory. However, the relation of such a theory to the law as its object is only indirect. Law is elaborated by justificatory procedures of normative character, not by descriptive theorizing. Coherence as a requirement on theory construction is independent from and, moreover, may conflict with the structure of normative reasoning. For example, justifying an exception of the basis of equity arguments in particular cases is less coherent than principled decision-making based on general standards defined in descriptive terms. Nevertheless, normative reasoning may justify or even require such exceptions.
Accordingly, there is a gap between theoretical reasoning about law and normative argumentation within the law. Legal doctrine tries to give a systematic account of the legal system in form of legal statements. Among them are statements aiming at being directly applicable. This requires formulation in descriptive terms with more or less fixed meaning. But legal norms are constituted by the balancing of normative arguments, and the relevant criteria of this balancing are not defined in descriptive language but are the concrete weights of the respective arguments. Even if at some moment a legal doctrine exactly fits the legal situation, the next case may show that this is not the case. Insofar as law is constituted by the balancing of normative arguments the possibility and even necessity to introduce exceptions regarding particular cases is inherent to the law and constitutes a peculiar form of defeasibility of legal statements. Normative reasoning within the law and theoretical reasoning based on coherence are different affairs.
The coherence of balancing is a third form of coherence, which follows its own criteria. Balancing decisions are based on two factors, the relative weights of the competing normative arguments, and the degree to what the claims of these arguments are satisfied or non-satisfied regarding the available alternatives (cf. HAGE 2001). Coherence with prior balancing decisions requires compliance with certain rules regarding these factors. If a new case has at least the same characteristics of relative weights and degrees of satisfaction than a previous one it must be decided in the same way. A stronger criterion of coherence is provided by an ordering of different degrees of relative weights and of degrees of satisfaction so that a higher degree in one dimension is compensated by a lower degree in another dimension.
Legal doctrine can be objective in various respects, and should be so. The respects in which objectivity is possible are mainly determined by the structure of the establishing legal norms by means of balancing of normative arguments, intersubjective reflection, and authoritative decision-making. Another issue is to what extent legal doctrine actually lives up to its claim to objectivity. Legal doctrine is torn between scientific aspiration and the aim to guide legal practice. One should not depreciate the second task, but accordingly cannot expect legal doctrine to be a pure, objective science. An indicator of how scientific legal doctrine is, is the standing that is given to the analytical instruments necessary for a scientific analysis of law, that are in first line logic, argumentation theory, semantics, and epistemology. As these disciplines have little standing in legal education and legal practice, one may well conclude that at the moment it is closer to legal practice than to legal science.
Alexy, R. (1989), A Theory of Legal Argumentation (Orig.: Theorie der juristischen Argumentation, 2ed., Frankfurt/M. 1991)
Dworkin, R. (1986), Law's Empire, London
Greenawalt, K. (1992), Law and Objectivity, New York/Oxford
Hage, J. (2001), Formalizing Legal Coherence, Proceedings of the 8th Inter na tional Conference on Artificial Intelligence and Law, ACM, New York, 22pp.
Hage, J./Peczenik, A. (2000), Legal Knowledge about What?, in: Ratio Juris 13, 326-345
Kelsen, H. (1960), Reine Rechtslehre, 2.ed., Wien
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Moore, M. (2004), Objectivity in Ethics and Law, Ashgate/Dartmouth
Stavropoulos, N. (1996), Objectivity in Law, Oxford 1996