A New Introduction to Legal Method

Paul Cliteur, Afshin Ellian

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000578768
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A New Introduction to Legal Method provides a comprehensive overview of legal science and the scientific character of legal knowledge.

In five chapters, the book analyses and explores: (i) legal methodology in general, the main features of different schools of thought, and the nature of science in general; (ii) American realism, which offers an ideal starting point for law students to reflect on the material they are about to study critically; (iii) rationalism, empiricism, and logical positivism, in particular the work of Karl Popper; (iv) criticisms of essentialism; (v) the ideological and philosophical background of contemporary liberal interpretation. The inclusion of Dutch, French, and German literature sources makes this law title differ from previous writings on legal science.

This textbook is ideal for students of legal method, and will be of great interest to those studying legal science, jurisprudence, legal research, and legal skills.

Chapter 1 Is legal science a real science?

DOI: 10.4324/9781003282570-2

For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.¹

1 O.W. Holmes, “The Path of the Law,” in: 10 Harvard Law Review, 8 (1897), pp. 457–478, p. 469

Every law student has, at one point during their studies, been asked the uncomfortable question by uncles, aunts, or cousins: “Law? Isn’t that boring?” Usually, it quickly becomes clear that the questioner believes the study of the law consists of “memorizing legal texts.” At first, your response is somewhat awkward, but after some time, fueled by mild irritation at the frequency with which the question is asked, you form a standard answer. Of course the study of the law requires learning some things by heart, but is that not true of every science? Does a chemist not know various formulas? Does a medical professional not know his Latin terminology? Does a historian not know that the French Revolution took place in 1789?

But it does not end; not long after, the law student has to justify himself again. This time, he faces students of other disciplines that he meets in the fraternities, the student houses, and the cafeteria. Here, the objection acquires a more principled character. It is no longer about how “boring” his discipline is, but about how “scientific.” Fellow students who practice a “real” science now ask (in a way, a more advanced incarnation of the earlier question, posed by uncles and aunts): “Law? That’s not really a science, is it?” One thing seems clear to them: there can be no research in this field. The law is “finished.” It is written in the law books. So what is left to discover? It can be read and, if need be, memorized. Or it can be applied, as judges do. But research? Science? No, law has nothing to do with that.

However, when the uncles and brothers (aunts and sisters would not do such a thing) and the joshing fellow students discover that jurists view the writing of books and articles about their subject as an intellectually demanding activity, they show some surprise. What can a “legal scholar,” insofar as it is possible to speak of such a creature, do but repeat what has been said before by the legislator or the judge?

A possible answer could be that sometimes a jurist proposes improvements to current law, perhaps comparing various advantages of different provisions within the framework of such an improvement proposal. But, it could be asked, is that the work of a legal scholar? Does a politician not do the same thing? In fact: is this not really the job of the politician, rather than of the legal scholar?

Anyone who has worked with the law for some time comes to see that this far too simple view of the nature of the law and legal science ought to be cast aside. In it, the law is equated with what are believed to be the literal rules found in the written sources, the “black-letter-rules,” as the American judge Oliver Wendell Holmes says.² The law is much more than that though, and the adaptation and study of the law require more than reporting on these “black-letter rules.”³

2 See also by him: Oliver Wendell Holmes, The Essential Holmes. Selections from Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., edited and with an introduction by Richard A. Posner, Chicago, London: The University of Chicago Press 1992 and Oliver Wendell Holmes, Collected Legal Papers, New York: Peter Smith 1952 (1920). 3 See on this: N.E. Simmonds, The Decline of Juridical Reason. Doctrine and Theory in the Legal Order, Manchester: Manchester University Press 1984 and N.E. Simmonds, “Law as a Rational Science,” in: Archiv für Rechts- und Sozialphilosophie, 66 (1980), pp. 535–556.

But before we can speak fruitfully about the specific nature of legal science as an autonomous discipline, it is illuminating to first say a few things about science in general. What is science? Van Schilfgaarde writes: “Science is (…) every coherent body of exceptional and justifiable knowledge.”⁴ About justifiable knowledge he adds that it is a knowing based on evidence. Characteristic of science also are an established method and a body of systematized knowledge. Furthermore, science is associated with knowledge that is proven: “Scientific knowledge is proven knowledge.”⁵ Elements such as objectivity, replicability, falsifiability, consensus, experiment, and predictability also regularly feature in descriptions of science.

4 P. van Schilfgaarde, Klein wijsgerig woordenboek, Wassenaar: Servire, 1968, p. 175. 5 A.F. Chalmers, Wat heet wetenschap: Over aard en status van de wetenschap en haar methoden, fourth edition, Meppel, Amsterdam: Boom, 1987, p. 187.

Before we discuss the scientific nature of legal science, we will first take a “phenomenological tour” of some characteristics of science. We will not go so far as to attempt a definition of science, but we will, in a random order, discuss a number of features with which science is commonly associated. Then we will judge whether, and in what sense, legal science can be said to possess the characteristic in question. From this, a picture of the work of legal science as an idiosyncratic but nevertheless scientific approach will naturally arise. (That is to say, it is not an overextension to qualify the work of the legal scholar as such.)

The first characteristic of science: consensus on a few basic facts

Let us begin with something with which science, at least in the popular imagination, is commonly associated: established, unassailable knowledge on a subject. Can legal science boast of facts about which there is more or less universal consensus?

The Dutch historian H.W. von der Dunk (1928–2018) offers some examples of things that are not disputed by any historian.⁶ Historians, he says, can disagree on any number of issues, but no one disputes that Hannibal defeated the Roman legions in the third century BCE, or that there were iconoclastic riots in Flanders in 1566. New research can reopen debate on a previously established historical fact, of course—perhaps Van der Lubbe set fire to the Reichstag after all!—but even when that happens, a new consensus about the new historical fact forms fairly quickly. One may wonder why that is. Probably, it has something to do with the fact that (1) the sources are relatively easy to verify and (2) there is a consensus on which arguments are relevant in supporting the new fact. In the case of the first: certain new documents from archives can constitute convincing proof to the practitioners of the historical sciences. These are empirically provable facts. Also—and this would constitute a second point, one closely related to the first—there is broad consensus on which arguments in support of a certain historical claim are valid. No historian will be able to ignore a newly discovered letter by Spinoza—once its authenticity has been verified—as an irrelevant datum.

6 H.W. von der Dunk, “Geschiedenis en wetenschap,” in: P.B. Cliteur, H.D. Papma, and R.T.P. Wiche, eds., Overtuigend bewijs. Over het wetenschappelijke van de niet-exacte wetenschappen, Meppel, Amsterdam: Boom 1994, pp. 38–65.

But what of legal science? Do we have unassailable certainties in the order of “The Battle of Nieuwpoort took place in 1600”? Of course, in the popular imagination, legal science might be thought to consist of nothing but certainties. Not only do contracts always have to be “legally airtight,” but legal science itself is also always associated with certainty, stability, irrefutability, and not being open to argument. Perhaps, however, this is an image that legal science itself propagates, but that, all things considered, does have some strongly ideological features.⁷ What facts has legal science produced that approach the unassailability of the previously mentioned “Battle of Nieuwpoort”? Many seemingly obvious answers turn out, upon closer inspection, not to suffice. For instance, the claim that the law is to be found in legal statutes is not entirely undisputed, as we will see in Chapter 5 of this book. Sometimes, the law is a dead letter. The thesis that the law is always geared toward justice, as natural law proponents argue, is also disputed, primarily by legal positivists⁸—who, as we will see, claim to be able to construct a value-neutral concept of the law—but also by the classical and modern Marxists of the Critical Legal Studies movement (CLS), who believe that the law always protects the interests of a particular social class, or is at least politically determined.⁹ Claims that judges ought to follow the letter of the law or keep out of politics are also contested.

7 See on this: Thurman W. Arnold, The Symbols of Government, New Haven: Yale University Press 1935; Thurman W. Arnold, “Institute Priests and Yale Observers,” in: University of Pennsylvania Law Review, 84 (1936), pp. 811–824; Neil Duxbury, “Some Radicalism about Realism? Thurman Arnold and the Politics of Modern Jurisprudence,” in: Oxford Journal of Legal Studies, 10 (1990), pp. 11–41 and Neil Duxbury, Patterns of American Jurisprudence, Oxford: Clarendon Press 1995, pp. 179–180. 8 Such as: H.L.A. Hart, “Positivism and the Separation of Law and Moral,” in: Harvard Law Review, 71 (1958), cited here in: H.L.A. Hart, ed., Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press 1983, pp. 49–87; H.L.A. Hart, “Lon L. Fuller: The Morality of Law,” in: Harvard Law Review, 78 (1965), pp. 1281–1296, cited here in: Hart, Essays in Jurisprudence and Philosophy, pp. 343–365. 9 See for a compiled work by CLS proponents themselves: David Kairys, ed., The Politics of Law. A Progressive Critique, New York: Pantheon Books 1990 (1982). About CLS: Andrew Altman, Critical Legal Studies. A Liberal Critique, Princeton, NJ: Princeton University Press, 1990; Joseph William Singer, “The Player and the Cards: Nihilism and Legal Theory,” in: Yale Law Journal, 94 (1984), pp. 1–70; Mark Kelman, A Guide to Critical Legal Studies, Cambridge, MA, London: Harvard University Press, 1987. An engagingly written critique is: Louis B. Schwartz, “With Gun and Camera Through Darkest CLS-Land,” in: Stanford Law Review, 36 (1984), pp. 423–464.

So it turns out that, at least in areas where the popular conception of legal science assumes certainty and consensus, among legal scholars themselves, this consensus does not exist. Still, within legal science, statements can be made that approach a “Battle of Nieuwpoort” status. The remarkable thing is that these are statements about the nature of the law itself, so fairly “philosophical” claims. For instance, that legal rules have a general nature, or that they should not, in principle, have retroactive force. Similarly, the claim that the law must be knowable by the public (no “Draconian laws” that were posted so high that no one could read them) is also generally accepted. It is legal scholars ...