Jurisprudence Between Science and the Humanities
60 Pages Posted: 9 Mar 2010 Last revised: 27 Aug 2010
Date Written: March 8, 2010
For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this essay I examine the place of science in the context of jurisprudential debates, in particular in the context of the idea known as legal positivism. I argue that historically legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science, i.e. they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that around the 1960’s jurisprudence and in particular legal positivism have undergone change towards anti-positivism. Central to this trend was the idea that proper jurisprudential inquiry must be conducted from the “internal point of view.” What this view amounted to was an attempt combine a scientific-like aim of neutral description with a humanistic method of inquiry. It thus did not entirely abandon its links with scientific inquiry, but has radically changed their nature. I show that this stance had a negative impact of narrowing down the range of issues discussed and of the kind of method considered appropriate for discussing these questions, I then argue that to counter current these isolationist trends jurisprudence would benefit from reorientation of its midway position between science and the humanities in the opposite direction: its aims should be those traditionally associated with the humanities but its methodology should be much closer to that of the sciences.
Keywords: Legal Science, Legal Philosophy, Law and Humanities, Legal Positivism, Legal Realism
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