1

EPISTEMOLOGICAL PERSPECTIVES
IN JURISPRUDENCE
Mark Van Hoecke and François Ost

1. Emergence and development of legal theory

The progress of science and the emergence of new disciplines are not only the fruit of genius and
the work of the learned. At certain points in history the time seems ripe for certain ideas, for new
approaches in the field of a branch of science or for the development of new disciplines. It is no
coincidence that the same discovery is sometimes made by two researchers at the same time,
independently of each other.
Neither is it coincidental that a distinct paradigm, a scientific approach to law, is successful and is
published by different researchers in several different countries at the same time. The emergence
of a new approach or of a new discipline results from certain needs which are developing in
society at a particular time. There is an awareness of deficiencies or weak points in the current
approach and a 'demand' for new or further lines of research.
Sometimes it is a reaction to the previous approach: the rationalism of the nineteenth century, for
instance, gave birth to romanticism. The present discussion on deregulation is probably the
inevitable consequence of the policy of intervention by the Welfare State.
At other times the trend is to pursue the path mapped out by a former approach. Econometrics,
for example, attempts to transform economic science into a more 'rigorous' and hence more
'scientific' discipline by mathematical means.
It is in this light that the emergence of new approaches or new branches in the science of law
should be viewed.

The emergence in the nineteenth century of the general theory of law can be explained by the
deep-seated crisis in the science of law in Continental Europe at that time. Before the major
codifications, legal scholars were faced with a considerable scientific and creative task. The sources
of law were many and varied, unsystematic and difficult to find, consisting as they did of
customary law which differed considerably from region to region, of a limited body of legislation
and learned Roman law that was taught in the universities. The creative work consisted in
development and systematization, principally of customary law, with the aid of Roman law. This
type of scientific work by several generations of jurists led to the major codifications in the
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eighteenth and nineteenth centuries, for example the Code Napoléon of 1804. Yet paradoxically
legal science, in preparing the codes, dug its own grave. Customary law and Roman law had
ceased to be important sources of law since all law was, henceforward, to be found in a clearly
written code accessible to everyone. The application of law by the judge now seemed to have
become an easy matter. Suddenly legal academics became redundant. What could they add to the
code, which was the product and the apotheosis of a bimillenary legal culture? The academic was
confined to the limited task of teaching the law. It is true that books and articles in the field of
legal doctrine continued to be published. But in these publications, the teacher of law often did
nothing more than recapitulate the code, adding some comments on the historical origin of the
rule and/or some practical applications. For a creative science there seemed to be no place. Legal
doctrine has thus undergone a profound identity crisis.

Philosophy of law too experienced troubled times. The liberal society of the 1900s was fairly
tolerant of new ideas. The confrontation with other conceptions of man and society (resulting,
inter alia, from colonization and from amelioration and augmentation of modes of transport and
communication) convulsed the hitherto homogeneous ideology that had provided a solid
foundation for society. Within the realm of legal philosophy this signified a loss of belief in both a
metaphysical natural law and a rational natural law, developed during the 17th and 18th centu-
ries (and from which the codifications had, at least to some extent, been derived).

In contrast with the decline in legal science, positive science achieved an incomparable success.
Progress in the sciences led to concrete results, plain to all, most notably to inventions and
technical improvements, such as the train, steamboat, car, aeroplane, telegraph, telephone,
photography, and electricity. The prestige of the positive sciences was clearly in the ascendant,
whereas that of the science of law was undeniably declining.

It is readily understandable that in this climate several jurists should from the middle of the
century start to question the scientific nature of their discipline1. Obviously they had to compare
their methods with the empirical methods of the positive sciences. From that point it was only
one step to concluding that in order for an approach to law to be scientific it had to apply the

1
1848 could be seen as a symbolic starting year, when in Germany Von Kirchmann was
publishing his book Über die Unwissenschaftlichkeit der Rechtswissenschaft. Other books, bearing the
criticism of the unscientific approach of the law by legal science in the very title, were published
later on by several European jurists: LUNDSTEDT, A., Die Unwissenschaftlichkeit der
Rechtswissenschaft, Berlin, 1932-1936; MULDER, T., Ik beschuldig de rechtsgeleerde faculteit van
onwetenschappelijkheid, Leiden, 1937.
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same methods as those of the positive sciences. This realization introduced a scientific approach
to law that could be called 'empirical natural law'. The ambition was to perform empirical
research, historical and current, in a comparative legal perspective, hoping to find concepts and
legal rules common to the various legal systems. They thought by applying an empirical method
they would arrive at a scientific 'natural law'. An important representative of this conception was
the German jurist Adolf Merkel (1836-1896), who described it as a 'positive science of law' or as a
'general theory of law' (allgemeine Rechtslehre). In his opinion, the general theory of law would
become the scientific successor to a metaphysical philosophy of law, whose demise was
pronounced. The general theory of law thus became, for some of its pioneers, not only a scientific
alternative, but also an ideological alternative. Although this conception was limited to a small
number of champions of the (general) theory of law2, the theory of law has, both in the past and
in our times, often been considered as a 'positivist philosophy of law', running counter any
speculative approach of a metaphysical type3. Radbruch, for example, spoke of the 'euthanasia' of
legal philosophy4. On the other hand, in the minds of the majority of representatives of the
general theory of law, both past and present, it constitutes a division of work and not a conflict
between two concurrent approaches5. The general theory of law of the 19th century has, however,
been applied in the course of the 20th century by representatives of widely differing trends in
philosophy. The historical grounds that gave birth to the general theory of law have gone out of
fashion to a large extent, although not entirely. This naive belief in a scientific model of the
positive sciences applicable to law hardly exists today. Nevertheless, at least in Continental
Europe, the need remains, today perhaps even more than a century ago, for a 'positive', analytical
and (partly) empirical legal discipline, to complement legal doctrine and the philosophy of law.

During the 20th century the general theory of law has evolved towards the present legal theory.

2
See e.g.: HERAUD, G., 'Qu'est-ce que la théorie générale du droit?', Archives de Philosophie du
Droit, 1962, p.120-121.
3
See e.g. the historical overview by Fasso of nineteenth and twentieth century jurisprudence,
in which the 'théorie générale du droit' is considered to be a positivist, anti-philosophical trend
(FASSO, G., Histoire de la philosophie du droit - XIX et XXe siècles, Paris, L.G.D.J., 1970, p.144-145).
See also the 1962 issue of the French Archives de Philosophie du Droit, in which various articles were
published under the title 'Qu'est-ce que la philosophie du droit?', esp.: p.95-96 (J.Brethe de la
Gressaye), p.100 (A.Brimo), p.106 (J.Dabin), p.116-117 (G.Del Vecchio), p.128 (G.Kalinowski),
p.143 (J. Parain-Vial).
4
RADBRUCH, G., Grundzüge der Rechtsphilosophie, 1914, p.16.
5
E.g.: KELSEN, H., 'Was ist juristischer Positivismus?', Juristenzeitung 1965, p.468.
 4

The programme of this new approach may be found in the preface to the first edition of the
'Revue internationale de la théorie du droit/Internationale Zeitschrift für Theorie des Rechts' published in
1926 (by Duguit, Kelsen and Weyr).
Instead of looking for elements common to all systems of law, the main concern is now with
common problems: "..the scholars carry out research based on the problems that come within a
scientific domain which we designate 'theory of law'. This is because it raises questions which
investigate e.g. the nature of law, the relationship of law with state and society, fundamental con-
cepts and methods of legal knowledge." (Preface, p.2).
This method appears more analytical than empirical.

The evolution of legal theory was also influenced by the general evolution of the study of law
within the context of the human sciences. During the last century new legal disciplines developed
as independent branches of 'general' human sciences.
Logic of law, sociology of law, anthropology of law, ethnology of law, psychology of law, semiotics
of law, economic analysis of law thus came into being. The dispersal of scientific approaches
created the need for an integrative discipline that is able to coordinate and systematize the
approaches and the results of these disciplines on an interdisciplinary base. This necessary inte-
gration is a new task for legal theory.

As a consequence of the critical movements of the society which developed during the 60s,
critique of ideology, which already existed implicitly within the framework of legal theory, was also
applied to law. Apart from those movements in thought, critical of law, which were themselves of
an ideological nature (for example the critical legal studies in the United Kingdom), another
purely scientific, analytical approach developed, which aimed at revealing the ideological nature of
scientific reasoning, theories, arguments, legal constructions etc., without criticizing the ideolo-
gical content as such. The ultimate aim is to eliminate such implicit ideological elements from
legal science and legal practice, wherever possible by eradicating them completely, or else by
making them explicit and thus clarifying the discussion.

The historical evolution as outlined above has to a large extent been confined to Continental
Europe. In the United Kingdom the teaching of law and legal science has always been strongly
tied in with legal practice, to such point that the first faculty of law in England was not instituted
until 1826, in London, although Oxford, the first English University, dated from the 12th centu-
ry. Moreover, the common law countries never had any major codifications or other disconti-
nuities in the history of their law. Nevertheless, numerous paradigms that satisfied needs in the
society of Continental Europe can be found in Anglo-Saxon legal literature. Jeremy Bentham and
John Austin e.g. had already spread the gospel of analytical jurisprudence at the beginning of the
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19th century, well before the birth of the general theory of law. Analytical jurisprudence, just like
Continental 'general legal theory', set out to establish general concepts of law, based on the
systems of positive law and from a non-ideological perspective. On the other hand, analytical
jurisprudence is analytical rather than empirical6. The emergence of analytical jurisprudence can
also be accounted for by the decline of philosophies of natural law and the success of scientific
rationalism7.

2. Aims of legal theory

2.1. The Demarcation of legal theory

The literature relating to the demarcation of legal theory vis-à-vis legal doctrine is not conspicuous
for its clarity. The consequence of a very wide definition of the object of legal doctrine and of the
philosophy of law is that there is no longer any room for a third discipline, legal theory. In the
final analysis this is of little importance, the real question being whether there is a genuine need
for an approach to legal problems, which differs substantially from the doctrinal and traditional
philosophical approaches. This means that the definition of the object of legal theory is relatively
arbitrary and to a great extent conventional. From a survey of Continental European literature of
the last century, a profile can be outlined and the following characteristics distinguished :

(a) Legal theory can be defined as an explanatory science that studies in an analytical or
interdisciplinary manner the theoretical problems concerning the law which are not completely
determined by the legal rules in force in a given legal system.

(b) Legal theory as an explanatory science of law concerns itself with an analytical and empirical
study of legal phenomena, which embraces positive law and legal doctrine.

(c) As with all sciences and contrary to philosophy (of law), legal theory endeavours to develop an
approach that is non-normative and value-free. Its aim is to produce scientific results that are

6
COTTERELL, R.B.M., 'English Conceptions of the Role of Theory in Legal Analysis',
Modern Law Review 1983, p.686-688; SCHOFIELD, Philip, 'Jeremy Bentham and Nineteenth-
Century English Jurisprudence', The Journal of Legal History 1991, p.58-88. See also the
Introduction by John BELL in: VAN HOECKE, M., What is Legal Theory?, Leuven 1985, p.11-25
('Legal Theory and the Anglo Saxon World').
7
COTTERELL, R.B.M., o.c., p.688.
 6

relatively unconnected with philosophical theories or ideologies.

Completely value-free science, however, is impossible, as has now been accepted even in the realm
of the positive sciences. Moreover, as Alexy and Dreier point out, this implies that any concern
with the problem of justice is excluded from the field of legal theory. Such a conception
presupposes that there is no conceptually necessary connection between the law as it is and the
law as it should be, which as such is a philosophical theory (legal positivism) that is open to
discussion8. Attention should be paid to the fact that analytical and ideological elements are
sometimes interlinked to such an extent that they cannot even be dissociated for the sake of
research. Nevertheless, all legal theorists in this analytical tradition, and most prominently Hans
Kelsen, had very sound reasons for trying to keep a clear distinction between a value-free,
scientific approach on the one hand, and a value-laden, ideological approach on the other hand.
This means that in pursuing legal theoretical research one can at least try to keep it as value-free as
possible. It is clear that the strong versions of legal positivism have played a historical role in their
reaction against heavily value-laden approaches to law in both legal philosophy and in legal
doctrine. But it is also obvious that some form of weak positivism (e.g., the Hartian or the
Dworkinian approach) has in general become increasingly accepted in the course of recent
decades.
Nineteenth-century belief in absolute scientific truth has, in the realm of the positive sciences,
been destroyed by relativity theories such as Einstein's. In the same line of thinking, Kelsen's
rather naive belief in keeping completely apart the law as it is and the law as it should be has
nowadays been replaced by a more modest belief in the possibilities of segragating ideology from
legal-theory research.

(d) The theory of law raises theoretical problems of its own, i.e. which are independent of any
concern to solve, directly or indirectly, the practical legal problems. Nevertheless, a good theory
(for example, concerning the interpretation of law) could be expected sooner or later to bear some
relevance to legal practice.
The problems studied by the theory of law are not entirely bound up with legal rules in force in a
specific legal system at a given moment. They are on a more abstract level that transcends national
and other frontiers of the various legal systems. Questions such as those concerning the nature of
the legal norm, the structure of legal systems, the separation of powers, the legal status (natural
law or positive law ?) of human rights or the methodology of interpretation, cannot be studied
independently of positive law. These problems are thus bound up with fundamental data, relating
not to a system of law but to a legal culture. However, they remain independent of the specific

8
DREIER,R., and ALEXY, R., 'The Concept of Jurisprudence', Ratio Juris, 1990, p. 2-3.
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content of systems of law at a given moment within this legal culture. Legal theory can, on this
point, be clearly distinguished from legal doctrine.

2.2. Fields of research in legal theory

The development of legal theory over the last century shows that there have been four different
lines of research. The first two fields - the oldest and most developed ones - are the analysis of law
and legal methodology. Two fields have emerged more recently: epistemology and methodology of
legal doctrine, and ideological criticism of law.

2.2.1. Analysis of law

The first task of legal theory is to elucidate the concepts, mechanisms and institutions of law.
Thus the accent is laid on the analysis of fundamental concepts such as those of 'law', 'legal norm',
'legal system'; the nature and the hierarchy of sources of law is studied. Attention is paid to the
various functions of law in society. This kind of research has been carried out by the analytical
school of Kelsen and his disciples, but the contribution of sociology and psychology of law in this
field has also been considerable (e.g. as regards the clarification of the functions of law in society,
and the discussion of the effectiveness of legal norms).

2.2.2. Legal methodology

Traditionally the interests of researchers were oriented towards the methodology of the
application of law, concentrating in particular on the question of judicial interpretation. A vast
amount of literature developed in this sector and in other, related ones such as the solution of
gaps and antinomies within legal systems, the theory of argumentation, and the qualification and
the interpretation of facts.

More recently, however, researchers have also concentrated on the methodology of the creation of
law or the theory of legislation. Economic analysis of law, introduced in the United States with
the aim of, inter alia, evaluating the social cost of legislation, has made a notable contribution in
this area.
The political theme of deregulation has also served to revive the debate on the art of legislation.
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2.2.3. Epistemology and methodology of legal doctrine

The epistemological question has been an open one since the major identity crisis with which
legal doctrine has had to contend over the last century. From that time there has been constant
debate on the scientific value of this body of knowledge. What is its nature? Is it descriptive,
experimental, empirical, hermeneutic or practical ?
Could it, once this question is resolved, be classified among the sciences? Could its scientific
character at least be enhanced? From this perspective, it is also interesting to analyse the nature of
the diverse conceptions with respect to legal education at the universities.

2.2.4. Criticism of legal ideology

Although this approach of analysing hidden and explicit ideological data in law is not absolutely
new (its beginnings are to be found in the writings of Bentham and of Kelsen, for example) it has
developed considerably since the 70s. The object here consists in tracing the philosophical
presuppositions, the ideological prejudices and the logical inconsistencies that adversely affect the
texts and the legal institutions which are ostensibly neutral. Almost every area of legal practice and
legal doctrine has already been the subject of such a critical analysis.

3. Epistemology of scientific legal theory

3.1. Legal science as a theoretical corpus and as social practice

As a cognitive activity aiming at a representation of legal phenomena conforming to the relevant

scientific paradigm adopted, legal science is both a theoretical corpus and a social practice.
As a theory, legal science constitutes a collection of systematically linked-up propositions. It
involves the application of a consistent methodology and the obtaining of knowledge which is
communicative and capable, if not of verification, at least of rational agreement. Whatever the
scientific criteria used, scientific discourse sets out to rationalize the phenomena studied by
reducing them, if not to uniformity, at least to order. More demandingly, the theory can also
endeavour to extend its power of clarification (explanation and prediction) to new aspects of
reality, not infrequently deviating from its common-sense representation.
As a social practice, legal science presupposes an institutional system of research and training and
reflects, either implicitly or explicitly, totally or partially, its interaction with values and ideologies
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which were initially dominant in the scientific community and later in the society as a whole.

Legal science can, on the basis of the very general definition presented, be developed at different
levels, having regard to the paradigms and the scientific criteria adopted. This point is, however,
obscured by the fact that in judicial thought the general dominant epistemological monism leads
to exclusions and mutual criticism and condemnation. If, on the other hand, a pluralist
epistemological perspective is adopted, it will be recognized that the scientific character is a matter
of degree and that the different versions of legal science can be applied in a spectrum of multiple
graduations corresponding to the diverse uses of the term 'legal science'. Thus for some, legal
science, in the form of legal doctrine or 'legal dogmatics', consists of describing and rationalizing
legal rules. Its specific job is the interpretation and systemization of rules. This task is sometimes
perceived as purely theoretical, the theoretician confining himself to knowing his object. In this
case legal science (meta-language) is clearly distinct from its object (law as a subject of language).
The object of legal science is normative but its methods are not. Sometimes, by contrast, legal
doctrine is considered to have the function of combining knowledge and creation, the theoretici-
an being called upon to argue in the light of the determination of the fairest solutions to
problems raised by the application of the law. In this case, both the object and the function of
legal science are normative.

Others, however, consider that legal science is unable to lay claim to this title unless it gains its
autonomy in relation to its object of study by acquiring the faculty to explain legal phenomena or
at least to account for them from a critical point of view and not morely provide a description and
a systemization of the law. This scientific approach was in turn developed in accordance with a
variety of epistemologies and methodologies : e.g., empirical, formal logical or hermeneutic. In the
first case, the theory which identifies which propositions relate to the observable phenomena, and
which are susceptible to empirical verification, is scientific. In the second case, the theory in
which the language is formalistic and the propositions incorporated into an axiomatic system, is
scientific. In the third case, the theory that accounts as satisfactorily as possible for (or explains)
discourse actually delivered by various lawyers, is scientific.

For the most part, however, the literature presents theories which borrow, whether deliberately or
not, elements of these various paradigms combining the various functions with which they are
associated.

Finally, it may be noted that some jurists have concluded that a science of law is not feasible
because, for example, of the impossibility of isolating purely empirical facts in the legal field, or
the impossibility of attaining a formalization of its language and an axiomatization of its rules.
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3.2. Which epistemology?

The debate aroused by these different approaches raises many questions. It appears that the most
significant of them lies in the degree of proximity of legal science to legal practice and legal
discourse. This question is probably basic to all scientific reasoning, but it is obviously more acute
in the field of human sciences than in that of natural sciences, because the subject studied -
human action - involves the use of the mind which, inevitably, involves the observer himself. If
Wittgenstein's concept of language games is adopted, could it be said that the legal theorist should
play the same game as the practitioner? If he does, doesn't he risk supporting the implicit
postulates of the discourse and rationalizing the underlying ideology? If he doesn't, doesn't he risk
failing to take account of the specific nature of his object and explaining something which is not
real law? Legal science is deprived of its scientific character in the first case; legal science is
deprived of its legal character in the second.

The relevant epistemological question that could encompass all others is: which object, theory,
verification, and function should be adopted for legal science?

As it is not possible to discuss all these problems here, three may be examined: (a) the question of
the paradigms, their multiplicity, their function, their historical nature, their dependence on
dominant ideologies in society; (b) the debate that sets the advocates of explanation against those
of understanding (sometimes represented in jurisprudence as the relationship between the
external and the internal point of view); (c) lastly, the problems of interdisciplinarity, as distinct
from both pluridisciplinarity and transdisciplinarity.
Here it will be argued that there is a case for a science of law, that it achieves the most fruitful
results where it adopts an interdisciplinary form. This implies an epistemological change in
relation to the common approaches to legal phenomena. Its point of view is external, but
'moderately external', to the extent that it takes account of the internal point of view of lawyers. In
other words, its aim is to explain legal phenomena by relating them to other social facts and social
discourses, without distorting its specific character, which assumes prior understanding of the
latter. The first job of legal science consists in identifying paradigms of doctrinal discourse itself.

Adoption of this thesis does not mean contradicting the view that this legal doctrine can itself
embody scientific elements, much as its practical utility is undeniable. It is possible that a science
of law starting from other epistemological premises, such as empirical or formal logical ones, can
also obtain scientific results. Contemporary 'post-positivist' epistemology appears in this respect to
prefer criteria of truth applied by the scientific community. It is the knowledge of which language
 11

game one plays, the assessment of its utility and its power of elucidation of them, that is
important.

Just as in a card game, there is a wide variety with a certain family resemblance. The game of
scientific language is capable of diverse applications, depending the criteria adopted for scientific
assessment. The question is, however, whether one can find some common trait constituting the
'family lookalike'.

3.3. Paradigms and science of law

Kuhn proposed a broad sense and a narrow sense of the concept of paradigm. In the broad sense,
the paradigm is the entire body of beliefs, recognized values and methods that are common to
members of a given scientific community. In its narrow sense, the paradigm is a particular
element of that group: the solution to a concrete problem that is used by researchers as a model
or common example for the resolution of other problems that arise in the development of the
discipline. Kuhn subsequently proposed the concept of 'disciplinary matrix' to account for the
various elements envisaged by the paradigm in the broad sense. Among these he distinguishes
between: (a) symbolic generalizations, kinds of formulae upon which the discipline is based (in
physics, the action = the reaction), established laws and definitions; (b) certain shared beliefs that
provide the scientific community with metaphors and accepted analogies; (c) the values shared by
the members of the group of researchers concerned (e.g., coherence, simplicity, accuracy); (d) the
paradigms in the narrow sense of common examples.

The importance of this epistemological concept lies in the emphasis laid on the fact that all
science, whatever the scientific criterion it selects, necessarily relies on ontological and axiological
premises: a specific view of the world (e.g., deterministic, finalist, probabilistic), and a set of values.
This shows the social and historical character of scientific practice and its interactions with the
interests and ideologies which clash in society , either reflecting these representations or itself
doing duty as an ideology 9.

This approach is even more necessary in legal science, where the object of study, the law, is of
such concern, politically and axiologically, to society. In addition, contemporary meta-science of
law aims at detecting the paradigms implemented in every theory of law that claims to be
scientific. Thus, for example, it has been argued that Continental legal dogmatics contains two
9
HABERMAS, J., Technik und Wissenschaft als Ideologie, Franfurt, 1968.
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central paradigms: belief in the sovereignty and the rationality of the legislator.10 These two
postulates underlie the work involved in interpreting and systemizing texts by traditional legal
science and make it possible to give positive responses to two essential questions which have to be
addressed: those of the intelligibility and validity of the norms claimed to be part of the law.
Although these postulates are only partly based on empirical observations, they impart a 'non-
positivist certainty' to the deductions of legal science in that they express the values on which
there is a broad consensus in the community of lawyers.

It is nevertheless easy, employing other paradigms, to question the scientific value of theories and
methods based on the rationality and the sovereignity of the legislator. These principles, which
should at the most find expression in the form of simple presumptions and regulate the process
of reconstructing legal texts, often degenerate into irrefutable presumptions and dogmas
incapable of verification. Thus they are not calculated to insure proper reorganization of legal
science when the latter is faced with a crisis which involves problems as regards its internal
coherence, as is the case today with the transition from the laissez-faire state to the welfare state. In
the language of Bachelard one would say that such principles act as 'epistemological obstacles'
shielding theory from all external criticism, showing how it departs from realities which should be
taken into account and reflecting its twofold, normative character (object and function).

The reaction to legal dogmatics has often taken the form of positivism. In this case the essential
paradigm for the scientist is adherence to the objective study of reality as such. Sometimes it takes
the form of a 'normativist' positivism (the object of legal science brings the law actually in force),
or it may be in the form of a 'realistic' positivism (the object of legal science being the law actually
applied). Without entering into a discussion of these two models of legal science, one need only
point to the considerable difficulty, even impossibility, of isolating in the field of law a purely
empirical object that lends itself to wholly objective observation and study. The validity of the
norm derives to only a limited extent from formal and explicit legal criteria. The meaning that is
ascribed to a norm is largely reconstituted by the judge and others when applying it, using implicit
principles and values.
'Open texture' thus characterizes not only every norm considered in isolation, but also the legal
system envisaged as a whole. Analysis of the legal phenomena cannot confine itself to a

10
ZULETA PUCEIRO, E., 'Legal dogmatics as a scientific paradigm', in PECZENIK, A., et al.
(eds.), Theory of legal science, Dordrecht - Boston - Lancaster, 1984, p. 21, VAN HOECKE,
M., 'Aard en methode van de rechtsdogmatiek', in Nederlands Tijdschrift voor Rechtsfilosofie
en Rechtstheorie, 1984, p. 188; OST, F., and VAN DE KERCHOVE, M., Jalons pour une
théorie critique du droit, Brussels, 1987, p. 97.
 13

description of facts the content and bounds of which are so uncertain. Otherwise it risks either
reducing the object studied to a truncated or misleading representation, or implicitly espousing its
suppositions and dogmas.
Other paradigms and other criteria of scientific authenticity have also been proposed, starting
from a clear epistemological break. This however gives then rise to the debate, typical of the
human and social sciences, on explanation and understanding.

3.4.Explanation and understanding - external and internal point of view

It is tempting to break free of the shackles of legal concepts and methods by adopting a radically
behaviouristic or materialistic position. One could in that case, for example, choose an object of
study produced entirely by the theory adopted and endeavour to analyse its functioning, to
explain it with the aid of hypotheses borrowed from other fields of study, highlighting the
mechanisms or the determinations of legal phenomenon. One such possibility is historical
materialism, which maintains, in any event, in its economist version, that the law is a superstruc-
ture which in the final analysis reflects relations of production in a given society. One could also
adduce certain versions of American realism, reducing the law to judges' decisions and accounting
for them by a complex of psychological factors.

Without denying the demystification effect produced by these approaches, or the elements of
truth they contain, it is easy to show that the objectivity sought and the explanation proposed
mutilate legal phenomena by amputating the normative dimension which is precisely what is
specific to them. The externality factor in this case therefore proves to be misleading and reduc-
tionist. This normative dimension is no doubt the subject of rationalization and interpretation by
the lawyers themselves: a self-interpretation phenomenon characteristic of the object of all the
human and social sciences. And no doubt too, it is precisely from this self-interpretation that
science, as conceived from the point of view of external explanation, aspires to free itself. But in
doing so is it not perforce constrained to reduce law to fact or at least to non-legal norms? This is
the view of other theorists who reject the paradigm of explanation in favour of that of understan-
ding11. Externalization makes way for internalization, objectivity for subjectivity. The raison d'être
of a social phenomenon lies in its internal sense (the sense that it has for the protagonists
concerned), which is clarified by means of representations, conventions and rules common to the
reference group. For the study of law, this would mean a type of knowledge that, without sharing

11
WINCH, P., The idea of social science and its relation to philosophy, London, 1970.
 14

the normative ambitions of legal dogmatics, would embrace the paradigms (which sometimes take
the form of myths and dogmas, as we have seen) employed in lawyers practical discourse. Here too
it is easy to demonstrate the unsatisfactory nature of this position which deprives the scientific
point of view of any real autonomy by conferring upon legal principles not only object-of-study
status (which is legitimate), but also criteria for the validity of theories (which can scarcely be
called scientific).

If one rejects both the position of an external spectator and that of an internal participant12, must
one then conclude that it is not possible to have a science of law? Not if one is willing to follow a
third course, namely that of 'moderate external point of view' or 'point of view of the external ob-
server who relies on the internal point of view of the lawyers'13. In our language this would mean
dialectical interaction between the paradigm of explanation and that of interpretation. While it
seems obvious that only the objective external point of view can lead to an explanatory theory of a
scientific nature, it is not at all incompatible with this position to adopt as an object of study the
'internal sense' or 'self-interpretation' employed by lawyers. First of all, the legal phenomenon is
described in discourse by the authorities and subjects of law, which involves an understanding of
the explicit and implicit conventions in this discourse. Then in a second phase, which is strictly
scientific, these discursive practices are explained (related in a causalist or teleological manner to a
particular type of environmental phenomena). In a third phase this leads to a comprehensive
reinterpretation of the object of study. The explanation therefore makes it possible to progress
imperceptibly from naive and instinctive understanding to critical and constructive understan-
ding. Various original concepts seek to portray the complexity and specificity of this approach to
the human sciences: Max Weber speaks of 'comprehensive explanation', Von Wright of 'quasi-
causal explanation' (to explain an action means to restore the premises of the practical syllogism
by which it has been produced). Villa, on the other hand, considers that legal phenomena are
'quasi-acts' and only susceptible of 'quasi-observation'.

Has this process reached a point at which the various approaches are no longer relevant to the
scientific issue? To make this assertion would be to overlook the recent developments in the
epistemology of the natural sciences that have resulted in a far-reaching revision of the
conventional notions of observations and of explanation. Without going further into this matter

12
VILLA, V., 'Legal science between natural and human sciences', in Legal studies, 1984, p.
266.
13
HART, H.L.A., The Concept of law, London, 1961. See also MACCORMICK, N., Legal
Reasoning and Legal Theory, Oxford, 1978, p. 275-292.
 15

we shall confine ourselves to reminding the reader that 'the facts' studied by the contemporary
natural sciences are not drawn from and observed in 'nature' by our external senses but produced
by the complex and artificial processes of experimentation, and thus totally mediatized by the
techniques and the theoretical language that governs the experimental process. Consequently, the
traditional criterion of controllability (verification or falsification) is tending to give way to the
criterion of fecundity of scientific pronouncements: theoretical interpretation is good when it
provides the most satisfactory explanation of known phenomena and opens up the greatest
number of perspectives regarding phenomena not yet elucidated. Thus there is no longer a radical
difference between the natural sciences and the human sciences and even if specific differences
persist, these are nevertheless not so important that there could not be said to be a 'family resem-
blance' between the two approaches.

What now remains is to specify the source of explanatory hypotheses adopted by legal science that
we advocate. This involves examination of the interdisciplinary character of the science of law.

3.5.Interdisciplinarity, pluridisciplinarity and transdisciplinarity

Claiming that law explains itself by itself can only lead to pseudo-scientific speculations.
Theoretical hypotheses adduced for the purpose of explaining legal phenomena have thus neces-
sarily to be drawn form other fields of knowledge: history, economics, psychology or sociology, for
example. But how can the respective discourses of these various disciplines be combined? Several
ways can be envisaged:

Pluridisciplinarity (or multidisciplinarity): A series of different disciplines developing their specific

points of view and relating to a common object of study are juxtaposed. This juxtaposition of
knowledge obviously gives rise to as many different problems as perspectives. Only if scientific
activity is imagined to have miracle-working powers can a mere juxtaposition of disciplines be
believed to create a common issue. In terms of language games, the situation in this case may be
described as no more than co-existence of different languages, producing something like a
scientific Babel.

Transdisciplinarity: In this case, the aim is, by discarding the specific standpoints of each
discipline, to produce an autonomous body of knowledge from which new problems and new
methods will arise. Here it is a matter of integrative disciplines. In terms of language games this
results in the construction of a new, common language, a kind of scientific esperanto.
 16

Interdisciplinarity: In this case, the research proceeds from the theoretical perspective of one of
the disciplines involved, developing problems and hypotheses that partially overlap those evolved
in the other discipline. This time the aim is to integrate bodies of knowledge and thus bring about
partial reorganization of the theoretical fields concerned by successive approaches, as in a
dialogue. In this case, one language game may be said to be 'translated' into another. There can,
however, be no denying the difficulties and even the limits inherent in this type of exercise, in
particular the need to respect the 'specific genius' of each scientific language. 14

The conclusion to be drawn from this succinct typology is that only interdisciplinarity makes it
possible to create the conditions for genuine scientific research. Pluridisciplinarity and
transdisciplinarity are more in the nature of scientific utopias: the former because it fails to build
up an original body of theory, the latter because it transcends all known scientific fields. On the
other hand, the interdisciplinary position is seen to be relatively unstable: it is liable at any time to
degenerate into a mere juxtaposition of approaches (pluridisciplinarity), as it may also lead, in
certain points of the research, to raise questions concerning transdisciplinary character. Moreover,
the nature of the phenomenon studied (in our case the legal phenomena and the categories
evolved by legal doctrine) may easily exert an undue influence on the scientific approach by
imposing its criteria of truth on the discipline which it studies, or vice versa. Here one is again
confronted with the awkward question examined above, i.e. the integration of the internal and
the external point of view, of understanding and explanation.

It may be concluded that in this complex model of an inter-disciplinary science of law, legal theory
is called upon to play an important role which consists of the reconciliation or translation of two
existing language games: legal doctrine (or 'legal dogmatics') on the one hand and the social
sciences on the other.

4. Conclusion : Perspectives of Legal Theory

Current developments in legal theory show a changing paradigm. All traditional concepts,
approaches, certainties of legal doctrine and jurisprudence are questioned and 'deconstructed' by
new approaches, such as critical legal studies or semiotics of law. Legal theory is obviously
searching for a new paradigm.

14
Regarding the possibilities, but also the difficulties of this interdisciplinary method applied
to the study of law cf. chapter 7 of the collective work : Theory of legal science (A. PECZENIK et al.,
eds.), Reidel, Dordrecht, 1984.
 17

Future research, in order to prove relevant, will need to clarify this paradigm problem. It will have
to establish a new scientific frame of reference.
Therefore, in the field of legal theory some priority should be given to research carrying out one
or more of the following approaches.

(a) Interdisciplinary approach: theoretical study of law and legal practice has been, and still is, in
need of fresh blood, for new approaches of legal phenomenon, e.g. psychological and economic
analyses of law. On the other hand, this proliferation of social science approaches to law
reinforces the need for an integrating, interdisciplinary study of law, as a reaction to the one
dimensional picture of legal reality offered by each of these disciplines and approaches separately.

(b) Macroresearch: Global approaches, the study of (sub)systems of law, should get priority over
study of small details.
Deep level research will probably in the long term prove of much more importance than research
of specific topics along the lines of traditional jurisprudence.

(c) Comparative approach: the obvious empirical basis of legal theory are legal systems and legal
practices. Each theoretical research should depart from a correct analysis of this empirical
material, not limiting itself to some intellectual construction and/or criticism based on a kind of
self-created reality. In order to having a sufficient broad empirical basis there seems moreover to
be a need for some new kind of 'General Theory of Law' (Allgemeine Rechtslehre): a kind of return
to the nineteenth century approach (what is common to all legal systems ?), but at a more
profound level, raising questions including: which are the common types of juristic discourse ?
which are the needs and the psychological expectations to which specific theories are giving an
adequate answer at a certain moment of time in a certain society ? These kind of questions
transcend individual, national legal systems. The answers however can hardly be general in the
sense the nineteenth century advocates of the Allgemeine Rechtslehre had in mind, namely some
'empirical natural law'. These questions have to be answered within the context of some legal
culture in the current period of history. Some problems will have to be studied in the perspective
of (basic) cultural differences. At this moment of time however it seems that an elaborated, overall
approach in the field of legal theory will only be possible within the limits of some legal culture, as
e.g. European legal culture, or at the most 'Western' legal culture, as opposed to African, Islamic
or Asian legal cultures.

(d) Intercultural synthesis: the cultural limits mentioned above, although geographically and
historically restricting the utility of the results of most legal theoretical research, will not, and
should not make jurists renounce trying to reach more general valid results. On the contrary, it
 18

will prove of the utmost importance studying these cultural differences and trying to make
intercultural synthesis for at least some issues of common interest to the world community. E.g.
theoretical analysis of international law will inevitably have to tackle that problem.

Maybe one might get the impression that the loss of one accepted paradigm creates too much
uncertainty, leading to a paralysing relativism. This however should not entail real problems at all
levels of theoretical research. Actually one could, within the field of legal theory, distinguish (at le-
ast) two levels: (a) a level of 'description' of some 'legal reality' for which legal theoretical analysis is
to a certain extent bound by the paradigm of current legal doctrine (this e.g. is the case for the
interpretation of law), and (b) a level of 'deconstruction' of (the approaches to) legal phenomenon.
Level (a) fulfils a need for explanation and clarification of some legal practice. Here the paradigm
problem is less crucial. Level (b) elaborates legal theoretical analysis, criticism and constructions
departing from a scientific and philosophical point of view. At this level, the four elements propo-
sed above for guiding future research should be fully taken into account.

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