Science or Soup?
Published by Manfred Gabriel December 16th, 2004 in Jurisprudence“In fact, there can be at least two sciences of law,” writes Davis Nelson. “Call these two sciences, for lack of better names, “law in action” and “academic law.”
While I agree that there may be two or more such sciences, I doubt that either would be law.
According to Nelson, Law in Action “would cover all of the actual processes which, over time, involve litigation, law office activities, judicial administration of disputes, and the like. This would be an empirical observational science. At a minimum, it would include psychological and sociological phenomena and employ the products of academic law. ( . . . ) Its principal activity would be the gathering of the knowledge necessary for the prediction of decisions.”
What would this science observe? The courts are the obvious cases, but what about town meetings, presidential pardons, the policeman’s decision to beat a suspect? What of the gang leader’s resolution of a dispute between gang members, or his decision to expel a gang member? The point is that in order to tell legal resolution of disputes (and that’s only half of what lawyers do) from non-legal dispute resolution, we need a concept of law first. Such concept of law has to be normative, and therefore you wouldn’t be able to observe it. If Nelson is serious about empirical, psychology, sociology, he is describing an interesting field of inquiry, but such sociology of formal dispute resolution isn’t any more “law” than the sociology of sex is a tumble in the hay.
Nor is Nelson’s Academic Law law. He envisions it as “an academic subject-matter, producing a body of propositions having certain formal relations capable of analysis. This would be a purely formal science, like mathematics. Its subject-matter would be entirely propositional. ( . . . ) The only instrumentality it would need would be formal logic. Its principal activity would be the analysis of legal postulates. ( . . . ) It would need no observational techniques of its own.”
It sounds very Kelsian, very much a pure science of law. But I think it is recognized today that Kelsen’s design, while brilliant and influential, was neither “pure” (devoid of observation) nor was it ultimately successful. The strange thing is that Nelson says “legal postulates” where he means norms. Perhaps that is significant: For if you consider where “legal postulates” come from, the Constitution, laws, and the rulings of courts and other decisional bodies, you realize that it will be impossible to speak about legal norms without some measure of empirical observation. There is, for instance, the question whether a legal norm exists (that is, is effective) unless it is either obeyed by those to whom it is addressed (at least sometimes) or its transgression punished (again at least sometimes). I can imagine a pure science dealing only in formal relations of norms, but I cannot imagine that it could distinguish between legal, moral, or theological norms. Any “ought” would be grist for its mill. What Nelson is talking about is perhaps deontic logic, perhaps metaphysics. But it isn’t law.
Law operates in the application of norms. Sociologists or realists cannot predict the decisions of legal actors without also looking at the normative framework defining and (perhaps even) controlling such decisions. Lawyers who must decide cannot merely look at norms and believe that a formal or logical operation could bring forth from the normative space a practical solution. They will need the facts also. The facts will not just be facts, but will be Facts, subject already to a normative legal process of selection and interpretation. The norms will be understood in the light of the practical issues and their social, political, and historical implications. Observation and normativity are commingled in a great legal soup. And lawyers are better thought of as cooks than as scientists.
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I really appreciate the very thoughtful response to my comment on your question about the relationship between law and science. So, I thought I would offer a short reply to it, and try to clarify some glaring ambiguities in my first comment.
It wasn’t my intention to offer either of the legal sciences I proposed as a source of a concept, or even a definition, of law - and definitely not that either would be law itself. Indeed, I don’t think that either would be of the slightest value in that regard. Only legal philosophy, not any legal science, would be of value. Legal philosophy and legal science are very different in object and methods.
You’re quite correct that we shouldn’t confuse the formal object of knowledge (law) with our knowledge of that object (i.e., in both science and philosophy, knowledge of things in their universality). That would indeed be a serious mistake, and it wasn’t my intent to do so. For example, take astronomy. What appears in an academic catalog as “astronomy” refers to the knowledge of celestial bodies, and not the bodies themselves. My two proposed sciences can be distinguished in a similar fashion.
And I also agree with you completely that “we need a concept of law first.” In terms of the proper conception of philosophy, philosophy is prior logically to the sciences. Furthermore, the philosophy of science is philosophy and not science. Philosophy restricts the various sciences to their proper spheres, and governs them by recognizing their autonomy within their own domains. It never dictates the conclusions of scientific research, but it does require scientists to confine their “interpretations” to whatever can be concluded from their limited data. The sciences can’t rule themselves; rather, their methods, scope, nature and validity of their knowledge raise questions that aren’t answerable by any scientific method - they belong to the logician and the philosopher. In addition, the question “What is the relation of science to philosophy?” is a philosophical and not in any way a scientific question.
Let me give just one example of a question about law that appears answerable only through philosophy. Can we employ the term law univocally in the following two instances: (1) to identify the acts of a human legislator and (2) to the applications of those acts by a judge to particular circumstances hic et nunc. Put another way: Do we use the term law univocally, analogically or equivocally when we employ the same term in these two impositions? The answers to these questions are unimportant for our purposes; I only want to illustrate the role of philosophy and emphasize that my suggested sciences have nothing at all to contribute to a sound conception of law as an object of knowledge. Indeed, the special experience of the scientist (through observation and experimentation) isn’t needed at all; rather, all that’s needed is the common experience that’s available to anyone. This isn’t to suggest that empirical evidence is never needed; it’s just not needed in the development of a sound philosophy of law. Law, like morality, must generally be sound, practical and undogmatic. It’s the “practical” aspect that suggests the proper role for any needed empirical evidence.
As to my “academic law”- it wasn’t offered as a Kelsian “pure science of law” or a “deontic logic”. Far from it. First, it’s critical to understand that logic is never an instrument of discovery, but rather an instrument of demonstration. It promises no path to “practical solutions”, and it’s not so offered. The utility of my proposed science might involve, among other things, tests of the logical truths to be found in judicial opinions and complex statutory schemes with greater detail and precision than is done anywhere today. Among its potential benefits might be the identification of issues in a way that would make our disputations about them more productive. How many times have we seen arguments (in court and on the floor of legislatures, to say nothing of law reviews!) in which the issues are never properly joined? I’m sure there would be benefits that are beyond anything I can imagine now. I confess than my idea for this science is only very generally conceived.
Second, you said that I should have used the term “norm” instead of “legal postulate”. In fact, postulate is exactly what I meant. As I envision this distinct science, it would have to be broad enough to cover more than just normative syllogisms. One rather trivial example: it ought to bring within its sphere the analysis of laws that are deemed merely mala prohibitum as well as those deemed mala in se - that is, purely conventional laws. Also, it’s not difficult to imagine certain needed proofs that are entirely descriptive in their modality. And there might well be collateral benefits such as helping shed light on (and, in my view, exposing the fatal flaws in) “ethical naturalism”.
You said that you “cannot imagine that [academic law] could distinguish between legal, moral, or theological norms.” That’s true and false. It’s true in the sense that no science is ever self-governing, as I said above. It’s philosophy that rules this particular science, and determines its proper sphere, as it does with every other science; philosophy (moral, legal, etc.) is not ruled by science in any way. But it’s false in another sense, if I understand correctly what you’re saying here. Formal logic, in the sense of the prior analytics of Aristotle’s “Organon”, can and does distinguish the modalities of its premises (within the confines of its proper sphere).
Finally, you made a very interesting statement as follows: “There is, for instance, the question whether a legal norm exists (that is, is effective) unless it is either obeyed by those to whom it is addressed (at least sometimes) or its transgression punished (again at least sometimes).” Beyond the secondary question of efficiency or utility, there is embedded therein an extremely important fundamental issue that is often misunderstood in modern times. What do we mean when we say that a legal norm does or does not “exist”? Obviously, we can’t mean that it has real existence like you or me. Its existence must be in some different way. Aquinas offered an explanation for such existence. The legal norm has “intentional” existence - a mode of being that is dependent on mind in general, i.e., the acts of some minds, but not dependent on the acts of any one particular mind. Another example would be the idea of liberty. Understanding the implications of this mode of existence would go a long way in responding to your question, and would obviate the need for “some measure of empirical observation.”
An aside: I thought you might well challenge me as to my two “sciences” in other ways. As to my “law in action”, the question might be whether social sciences are science at all. Science, as conceived in modern times, is investigative knowledge of natural, i.e., changing, things. Whether social phenomena are in a strict sense natural and can be proper objects of science might be a good topic for another day. If they are, then social studies seem to be natural sciences. If they aren’t, then my “science” will never become scientific. As to my “academic law”, its treatment as a science and especially my comparison with mathematics might raise all sorts of issues that arise from the rather schizophrenic nature of mathematics in modern times.
Davis Nelson
Legal Philosophy Blog