Can Legal Theory Be Objective?
Maastricht European Private Law Institute Working Paper No. 2011/36
16 Pages Posted: 7 Dec 2011
Date Written: December 6, 2011
It is obvious that much that can be said about the law of a particular jurisdiction. The question may therefore be raised whether there remains something to be said in general about the law or about particular aspects of it. By means of examples about whales and planets is is illustrated that the possibility to say something in general about a category of things, it may be necessary to mark of this category by means of a convention which has in part a stipulative nature. Given this convention, some things become ‘true by convention’, but the explication of what has become true by convention may nevertheless lead to new knowledge.
That such new knowledge by convention is illustrated by means of case studies about rules which seemingly lead to unattractive consequences in some cases, and about juridical acts and the role of competences and powers in that connection. Legal theory can lead there to objective knowledge by dividing the subjects in a part which is relative to a particular jurisdiction (how the law deals with hard cases; what the role of competence is with regard to juridical acts) and a part which is objective in the sense of system independent (the distinction between four ways of dealing with hard cases, the logic of rules that allow for exceptions, the notion of a legal power and its relation to the notion of competence). Moreover, the objective part can be described in an objective way, and by combining this objective description by the conventional choices made by a particular jurisdiction, legal theory can also describe objectively whereto the choices of such a system lead.
Keywords: Objectivity of legal theory, truth by convention
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