Since the mid-nineteenth century, these conclusions have repeatedly led to the observation that “jurisprudence” lacks fundamental characteristics to be considered “jurisprudence”, whereas until now jurisprudence has been widely regarded as a model of “science”.1 More recently, these are mainly the procedures for evaluating the results of research and the distribution of public funds among “scientists”. who have placed this issue at the centre of the scientific debate. The lawyers reacted differently to this pressure. A large majority of them stressed the practical usefulness and even the necessity of their publications for the practice of law and stressed the importance of law in society or benevolently ignored this criticism. Others adopted criticism, adopted the narrow empirical view of “science,” and attempted to adapt jurisprudence to that model.2 In the nineteenth century, this type of reaction gave rise to “legal theory” in the sense of “positive jurisprudence,” a kind of empirical “natural law,” a search for legal concepts, legal norms, and principles of law that all mankind would share.3 There has been some research in legal anthropology (Maine, Post)4, but remained largely in the phase of a research program forgotten since the First World War. Like this reaction, since the late nineteenth century and mainly throughout the twentieth century, we have witnessed the birth and development of other social sciences focused on law: sociology of law, forensic psychology, law and economics. All of these disciplines provide empirical research and theorization on legal issues. However, they have never sought to replace case law, but only to provide lawyers, lawyers and policymakers with useful information about the legal reality. Unfortunately, their impact has remained quite limited. Thus, today there is a somewhat schizophrenic situation in which one discipline, legal doctrine, fundamentally studies law as a normative system and limits its “empirical data” to legal texts and court decisions, while other disciplines examine legal reality, law as it is.
The results of these two disciplines are neither systematically reconciled, combined or integrated at the level of case law. Today, in various countries, the evaluation of research and the financial resources associated with it have made the empirical view of science even more influential. This has happened to the point that lawyers and university policymakers believe that jurisprudence can only become “scientific” if it becomes an empirical (de Geest) social science. In other words, it is about ending a tradition of more than two millennia and imitating empirical sciences that have a different purpose. Instead of concluding that the monistic view of science based on physics is false, “falsified” in its terminology because it does not correspond to disciplines such as jurisprudence, some have concluded that jurisprudence is (completely) wrong and always has been. This is a dangerous development that, based on false assumptions (unity and similarity of all scientific disciplines), threatens the future of the humanities in general and jurisprudence in particular. Admittedly, the criticism of legal doctrine is partly justified: it is often too descriptive, too autopoietic, without taking sufficient account of the legal context; there is no clear methodology and the methods of legal doctrine appear to be identical to those of legal practice; it is too narrow-minded and limited to very small scientific communities due to its specialization and geographical boundaries; There is not much difference between lawyers` and jurists` publications. All of this may be true, but as such, it does not disqualify jurisprudence as a discipline in its own right.
In this chapter, I will define jurisprudence as an “empirical-hermeneutic discipline.” Although it has empirical aspects that make it comparable to all empirical disciplines, the main activity of jurisprudence is interpretation, which it also has in common with other disciplines (theology, literary studies). How can we describe the methodology of jurisprudence in terminology widely used in academia without limiting it in such a way that we lose essential characteristics of this discipline? Legal doctrine has been practiced and conceived in different ways throughout history, emphasizing and sometimes overshadowing the different characteristics of this discipline. In what follows, we will discuss the different angles from which the case law has been presented and the extent to which it gives a true picture of this discipline. This is followed by an analysis of the methodology of legal research in relation to hypotheses and theory formation. Ii. WHAT KIND OF DISCIPLINE IS LEGAL DOCTRINE? One. A hermeneutic discipline It is difficult to deny that jurists often interpret texts and discuss a choice between divergent interpretations. In this way, jurisprudence is a hermeneutical discipline, as, for example, the study of literature or, to a lesser extent, history. The interpretation of texts has been the main activity of jurisprudence since its beginnings in the Roman Empire.5 In a hermeneutical discipline, texts and documents are the main object of research and their interpretation according to standard methods is the main activity of the researcher. This is clearly the case with legal doctrine. Jurisprudence has often been presented as another type of “science” in which the hermeneutic dimension is minimized or at least lost in importance.
This has occurred, for example, when scholars have tried to distinguish jurisprudence from legal practice or to more clearly separate the description of law from its evaluation, or when case law has been modeled on the methodology of other disciplines, and in particular the positive sciences. B. An argumentative discipline close to the conception of jurisprudence as a hermeneutical discipline is the conception of an argumentative discipline. Here, the focus is on the reasoning in support of a legal interpretation or solution, rather than on the interpretation as such.6 The argumentative point of view has the advantage of placing things in a broader perspective. This allows us to take a step back from the interpreted text or any other document. A specific question of law may be resolved on the basis of generally accepted or at least acceptable views or a case may be resolved. In the traditional theory of argumentation, they are called “topoii”7. In many cases, the argument will support a certain interpretation of one or more texts, but in other cases, the argument can only be vaguely related to those texts, for example if it is based on unwritten legal principles, or if gaps in the law are filled, or if a text is simply set aside in favour of an interest or value considered more important. From the Middle Ages to the seventeenth century, jurisprudence developed into an argumentative discipline that used entire catalogues of arguments to determine which kind of arguments were acceptable in which cases.8 In fact, interpretation and argumentation cannot be separated, both in jurisprudence and in legal practice. Any textual interpretation needs arguments where divergent interpretations could reasonably be supported, and legal reasoning will almost always be based on interpreted texts. Thus, jurisprudence and legal practice are both hermeneutic and argumentative, but interpretation and argumentation seem to concern two sides of the same activity, in which interpretation is the end and argumentation is the means to maintain this interpretation.