Rule of Law and Legal Epistemology
Published in E. Feteris, H. Kloosterhuis, J. Plug, C. Smith (eds.), Legal Argumentation and Rule of Law, The Hague: Eleven 2016, p. 193-204.)
Tilburg Private Law Working Paper Series No. 3/2017
10 Pages Posted: 25 Apr 2017
Date Written: April 25, 2017
Against the positivistic conception of law, restricted to sources of law, it is argued that doctrine and other materials are also relevant. Legal argumentation is based on legal knowledge, which is constructed not only with legal authorities but also with epistemic authorities, in line with the epistemological recognition of testimony as source of knowledge. This approach can accommodate the authority of non-binding texts, thereby contributing to a legal method for a multi-level legal order.
Keywords: legal epistemology, legal method, multi-level legal order, epistemic authority, testimony, positivism, sources of law, precedent
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