Law: concepts and conceptions
Every scientific discipline has certain methods by which it comes to understand its object, and certain presuppositions without which its questions, methods, and provisional knowledge are meaningless. By “scientific discipline” this blog series means only a practice aiming at understanding that is organized and privileges reason.
Legal scholarship as a scientific study, like the legal norms and procedures in which it is interested, has certain absolute presuppositions: the capacity for responsibility of those who can legitimately stand trial, for example—and indeed their empirical existence in the first place.
In the philosophy of law, however, what must be presupposed by legal scholars can be questioned. The roots of what appear as intractable disagreements between Anglo-American and Continental jurists’ understanding, characterization, and definitions of “law” can be exposed.[1] For the first school, law is characteristically “factual”, for the latter it is characteristically “abstract.” Part of the reason for this is that Anglo-American and Continental jurists view validity and efficacy differently, and posit different relations between them in the meaning of “law”.
Whilst Anglo-American scholars claim to study law as it is (broadly, empiricism or, specifically in law, factual conception of law) their Continental peers question how law ought to be (broadly, rationalism or, specifically in law, abstract conception of law).[2] For instance, on the one hand, some classical definitions of law in the Continental tradition like the ones proposed by Weber, Hoebel and Kelsen seem to suggest that in order for a normative system to be law it ought to include coercion.[3] On the other hand, the Anglo-American tradition lead by Hart seems to be more interested in the empirical side of the law, as the Fuller’s desiderata appears to suggest.[4]
When Hart and others criticize Continental conceptions of law they do so by asking empirical questions that cannot be answered by definitions.[5] Indeed, there is a confusion here between conceptual and substantive issues. Whilst accounts like Fuller’s maybe a substantive theory of law (factual conception of law), Kelsen and other Continental authors offer a conceptual understanding of this “phenomenon” (abstract conception of law).
Law has to do with at least two realms: norms and facts.[6] Any reference to law and its basic defining elements immediately includes, for example, norms, human conduct, crime, punishment and a few others. Similarly, each of these elements exists in at least two realms.[7] “Norms”, “human conduct”, “crime”, and “coercion” may refer to abstract legal terms, and may describe empirical entities or their attributes. Norms and facts have to do with law as a whole, and with each of its particularities. Yet norms and facts are not the same. Hence, using the term “law”, to refer either to an abstract concept or to factual elements of legal and political discourse, means applying the same term but relying on different meanings—i.e. using the same word to refer to slightly different conceptions. What appears to be a unitary concept actually invokes an ambiguity.
On the one hand, law must relate to human conduct and its regulation—at least to some conduct. On the other hand, “law” does more than describe the facts or general patterns of conduct. It is normative, it seems to prescribe, whether by way of a command, a permission, a prohibition, etc. In one case of the other, it is plausible to argue that legal science is a science of realities and, therefore, a science of experience. To be more precise, law is human-made[8] and, therefore, law is a science of human cultural experience and not of natural or caused experience, whether law itself may centre on rules or human conduct.
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Law as science of realities.
Author of:
Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).
Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).
Wednesday 28th April 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
https://drjorge.world
[1] There are other ways to distinguish the different conceptions in law. See, for example, the difference between verbal realism and conceptual pragmatism devised in H. Kantorowicz, The Definition of Law (Cambridge University Press, 2014), Chapter I. For more details about a bridge between Anglo-American and Continental styles in legal philosophy see Jorge E. Núñez, “The Logical Analysis of Law as a Bridge between Legal Philosophical Traditions,” Jurisprudence (2016), 627-635. See also P. Navarro and J. Rodriguez, Deontic Logic and Legal Systems (Cambridge: Cambridge University Press, 2014).
[2] There is a third facet, that of how law should be or axiological law.
[3] The assumption by Hart and his followers that for Kelsen law must be coercive is mistaken. See Jorge E.Núñez, “The Many Forces in Law: Rational, Physical and Psychological Coercion,” in Nicoletta Ladavac and Christoph Bezemek, eds., The Normative Force of the Factual (Switzerland: Springer, 2019), 135-149..
[4] Jack P. Gibbs, “Definitions of Law and Empirical Questions,” Law and Society Review 2:3 (1968), 429-446.
[5] Jack P. Gibbs, “Definitions of Law and Empirical Questions,” Law and Society Review 2:3 (1968), 429-446, 446.
[6] I leave aside intentionally and for future research the third realm: values, or the “axiological” side of law.
[7] I understand law as phenomena existing in three realms: norms, facts and values (deontology, ontology and axiology).
[8] The author uses intentionally gender-neutral language. The blog series will not include discussions about natural law theories and how or by whom law is created.
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