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Legal science between natural and human sciences *

Published online by Cambridge University Press:  02 January 2018

Vittorio Villa
Vittorio Villa*
Affiliation:
Institute of Legal & Political Philosophy & Theory, University of Palermo
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Extract

In this paper I will offer some methodological reflections on legal science and its relations with the natural and human sciences. The first part of the paper (sections 2-4) deals with the relation between legal science and the natural sciences. The thesis I put forward is drawn from my book Teorie della scienza giuridica e teorie delle scienee naturali. Modelli e analogie, and restates the main points of my argument there against approaches founded on neopositivism and in favour of a post-positivist approach. The second part (sections 5-7) deals with some aspects of the relations between legal and human sciences, and develops some rather more tentative ideas which go beyond the conclusions reached in the book.

Type
Research Article
Information
Legal Studies , Volume 4 , Issue 3 , November 1984 , pp. 243 - 270
Copyright
Copyright © Society of Legal Scholars 1984

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Footnotes

*

This is the English version of an original paper written in Italian. I wish to thank Neil MacCormick not only for very considerable help with the translation but also for the suggestions and advice that he gave me during a period of common work which was undertaken to prepare the paper in English. This is, therefore, an improved version of the original, which owes to MacCormick's ideas much more than he is ready to recognise.

References

1. Giuffrè, Milano 1984.

2. I take the concept of ‘image of science’ from J. Elkana, ‘Boltzmann's Scientific Research Program and Its Alternatives’, in The Interaction Between Science and Philosophy (Atlantic Highlands, NJ 1974) p 246.

3. The analogy between sciences and games, obviously based on the later works of Wittgenstein, is developed by D.L. Phillips, Wittgenstein and Scientific Knowledge. A Sociological Perspective (London 1977) pp. 154–168.

4. My conception uses the following distinction between epistemology and methodology: by ‘epistemology’ I intend a general theory of scientific knowledge, regarding the goals, the structure and the referents of scientific enterprise; by ‘methodology’ I intend the discipline which, on the basis of a certain epistemology, offers a partial and selective reconstruction of the most significant and relevant criteria currently used by scientists to judge the soundness of their methods of pursuing scientific inquiries (eg criteria stipulating what is the correct way to conduct observations, to approach the task of theory building, to establish empirical controls, and to choose among rival theories). But methodology, in my opinion, has also a normative task, because it can in its turn criticise, on the basis of the presupposed image of science, the criteria it reconstructs, suggesting improvements in them or improved version of them. For this conception of methodology, see G. Radnitzky, ‘Popperian Philosophy as an Antidote Against Relativism’ in Essays in Memory of Imre Lakatos, ed by R. S. Cohen, P. K. Feyerabend, M. W. Wartofsky (Dordrecht 1976) pp. 507–509.

5. Here I follow the definition proposed by E. di Robilant, ‘Prospettiue sul molo del giurista nella società tecnologica della nuoua Europa’ in Materiali per una storia della cultura giuridica, 2 (1980) p 510.

6. This fundamental aspect of science is brought into light very clearly by L. Leshan-H. Margenau, Eintein's Space and van Gogh's Sky, Physical Reality and Beyond (New York 1982) p 21.

7. Cf., for example, A. Aarnio, Philosophical Perspectives in Jurisprudence (Helsinki, 1983) p 163, and A. Peczenik, The Basis of Legal Justification (Lund, 1983) p 118.

8. Recent and important lines of meta-scientific thinking favour the view that theories approach reality in more complex ways, that is through ideal models, artificial and abstract replicas of phenomena which aim to simulate some aspects of reality; cf, for example, B. van Fraassen, The Scientific Image (Oxford, 1980) p 44.

9. I owe this definition to E. di Robilant, La conzguratione delle teorie nella scienzo giuridica, in Rivista intemzionale di Filosofia del diritto 4, (1976) pp 470–539.

10. A. Ross, On Low and Justice, (London, 1958) p 67.

11. Ibid, pp 39–40. A reconstruction of Ross's methodology is given in my essay ‘Implicazioni meta-teoriche nella teoria del diritto di Alf Ross’, in Rivista internazionale di Filosofia del diritto, 2 (1979) pp 258–288.

12. This metaphor is proposed by M. W. Wartofsky, ‘How to Begin Again: Medical Therapies for the Philosophy of Science’, in PSA 1976. Proceedings of the 1976 Bimnal Meeting of the Philosophy of Science Association, Vol 11, ed by F. Suppe and P. D. Asquith (East Lansing, Michigan 1977) p 114.

13. The expression ‘methodological monism’ is used in the same sense by G. H. von Wright, Explanation and Understanding (London 1971) p 4.

14. The concepts of positive heuristics and negative heuristics arc drawn from Lakatos's conception of research programmes (cf I. Lakatos, ‘Falsification and the Methodology of Scientific Research Programmes’, in Criticism and Growth of Knowledge, ed by I. Lakatos and A. Musgrave (Cambridge 1970) pp 132–138).

15. Many post-positivist conceptions share this point of view. The most interesting methodological perspective seems to me, nevertheless, that of Shapere, from which my observations on scientific method draw particular inspiration. According to Shapere, scientific change extends itself'to the methods, rules of reasoning and concepts employed in and in talking about science' (D. Shapere, The Character of Scientific Change, in Scietfic Discovery, Logic and Rationality, ed by T. Nickles (Dordrecht 1980) p 63).

16. On the interactions between method and substantive content within science, cf. N. Rescher, Methodological Pragmatism (Oxford 1977) pp 3–9; D. Shapere, The Character of Scicntific Change (supra n 15), pp 61–95; T. S. Kuhn, The Essential Tenrion, Selected Studies in Scientific Tradition and Change (Chicago and London 1977) pp 335–336; P. K. Feyerabend, Science in a Free Society (London 1978) p 23.

17. The conception for which specific methodological criteria are the result of the application of general methodological principles to a certain particular context, is partially similar to that of L. Laudan, Progress and Its Problems. Towards a Theory of Scientific Growth (London 1977) pp 130–131.

18. These principal objectives are carefully analysed by Stephen Toulmin, who prefers to speak of ‘disciplinary principles’ and ‘explanatory ideals’ (S. Toulmin, Human Understanding, Vol I (Oxford 1972) pp 79–80, 124).

19. On the necessity that epistemological and methodological principles be interpreted, before they can be applied to a specific domain, cf T. S. Kuhn, The Essential Tenrion (supra n 16, p 335) and M. Polanyi, Personal Knowledge, Towardc a Post-Critical Philosoply (London 1958) p 170.

20. By ‘analogue model’ I intend a set of representations or assumptions on a determinate object (or artefact), which is chosen (or built) by scientists in order to put into light certain relevant affinities between it and a scientific (or meta-scientific) object which is, at the moment, under investigation. Cf P. Achinstein, Concepts of Science, A Philosophical Analysis (Baltimore 1968) p 210.

21. This discussion on observation in natural sciences is mainly based on the theses of Shapere (cf particularly I). Shapere, ‘The Concept of Observation in Science and Philosophy,’ in Philosophy of Science, 4, 49, 1982, pp 485–519). Anyway, the thesis that all Observation is theory laden is quite broadly shard in contemporary meta-science.

22. Cf, for example, N. R. Hanson, Patterns of Discovery. An Inquiry into the Conceptual Foundations of Science (Cambridge 1958) pp 19–30.

23. Shapere correctly notes that certain existence-claims in contemporary physics logically involve the postulation of entities of whose existence there can he no direct knowledge at all (D. Shapere, Natural Science and the Future of Metaphysics, in Methodological and Historical Essays in the Natural and Social Sciences, ed by R. S. Cohen and M. W. Wartowfsky (Dordrecht 1974) pp 168–169.

24. These references to paradigm and scientific communities are of course derived from T. S. Kuhn, The Structure of Scientific Revolution, Second Enlarged Edition (Chicago 1970).

25. For a statement of the view that the direrent domains of science presupposr alternate realities, that is a multi-tracked universe, see L. Leshan-H. Margenau, Einstein's Space and van Gogh's Sky (supra, n 6), p 12.

26. For this popperian conception, see K. R. Popper, Objective Knowledge, (Oxford 1972) pp 103–122.

27. Cf S. Toulmin, The Uses of Argument (Cambridge 1969) pp 7–8.

28. For simplicity's sake, however, I shall here speak of rules as though they were themselves phenomena, rather than legislative dispositions, etc., which would be more proper in my view. In fact, this distinction is not always explicitly made in legal theories, so I hope this simplification will not cause confusion. But it is worth repeating that in my opinion rules are properly to be considered as theoretical entities for explaining phenomena, not as phenomena themselves.

29. I use the expression ‘double hermeneutic’ in the sense given by A. Giddens, New Rules of Sociological Method: a Positive Critique of Interpretative Sociologies (London 1976) p 79.

30. H. L. A. Hart, The Concept of Law (Oxford 1961) pp 55–56, 86–88.

31. A. Ross, On Law and Justice (supra, n 10), pp 40 ff.

32. Cf, for example, H. Kelsen, Reine Rechtslehre (Zweite Adage, Wien 1960) pp 72–95.

33. These theses are stated by N. Bobbio in II positivisrno giuridico (Torino 1961) pp 160 ff, and in Giusnaturualismo e positivismo giuridico (Milano 1965) pp 105 ff.

34. H. Garfinkel, Studies in Ethnomethodology (Englewood Cliffs, NJ 1967) pp. VII–VIII.

35. This is the model of anthropological study proposed, for example, by P. Winch, Understanding a Primitive Sociely, in Rationality, ed by B. R. Wilson (Oxford 1970) pp 78–111.

36. A. Aarnio, On Legal Reasoning (Turku 1977) pp 297–298.

37. A. Aarnio, Philosophical Perspectives (supra n 7) pp. 153–154.

38. A. Aarnio, On Lgal Reasoning (supra n 36) p 148.

39. A. Giddens, New Rules of Sociological Method (supra n 29), p 145.

40. A. Giddens, Central Problems in Social Theory. Action, Structure and Contradiction in Social Analysis (London 1979) p 251.

41. Ibid, p 253.

42. A. Giddens, Profiles and Critiques in Social Theory (London 1982) p 5.

43. H. L. Hart, The Concept of Law (supra n 30), p 87.

44. N. MacCormick, H. L. A. Hart (London 1981) p 29.

45. Ibid, pp 33–43.

46. M. Hesse, Revolutions and Reconstructions in the Philosophy of Science, Brighton 1980, p XXI.