The Method of a Truly Normative Legal Science
19 Pages Posted: 5 May 2010 Last revised: 9 Feb 2011
Date Written: May 3, 2010
This paper contains an argument to the effect that the proper method for legal science depends on what one takes to be the nature of science, the nature of the law and the kind of questions that are addressed in legal science. It starts from three assumptions, namely that: a. science is the collaborative pursuit of knowledge, b. the law consists of those norms which ought to be enforced by collective means; c. the proper standard to determine what ought to be done is what maximises the long term happiness of all sentient beings (the H-standard). On the basis of these assumptions the following positions are argued: 1. Legal science, in the sense of a description of the law, is not impossible for the reason that it is a normative science; 2. In abstract the method of all sciences, including legal science, is to create a coherent set of positions that encompasses ‘everything’, and therefore also beliefs about the law. 3. The proper method for a normative legal science consists primarily of the methods of sociology, psychology and economics, because the ultimate question to be answered is the collective enforcement of which norms satisfies the H-standard. The more traditional hermeneutic methods only play a role to the extent that they establish positive law that contributes to happiness by providing legal certainty.
Keywords: Legal science, legal method, nature of law
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