“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.