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Priel on Jurisprudence and Social Science

By Lawrence Solum

Dan Priel (University of Warwick - School of Law) has posted Jurisprudence between Science and the Humanities on SSRN. Here is the abstract:

Philosophy has for a long time been unique among subjects in the humanities for seeking closer alliance with the sciences. In this essay I examine this question in the context of jurisprudential debates, in particular in the context of the transformation 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 as the natural sciences. (I also show that different views on the matter also help us understand the work of different legal realists.) I then argue that around the middle of the 1960?s jurisprudence and in particular legal positivism has 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 argue that this stance had a negative impact of narrowing down the range of issues discussed and of kind of inquiry appropriate for discussing these questions. To counter the current isolationist trends jurisprudence would benefit from reorientation of its midway position between science and the humanities in the opposite direction: its aims should be normative, but its methodology should be much closer to that of the sciences.

And from the paper:

Nowadays there seems to be a growing sense that the middle-ground approach which now exemplifies the mainstream of legal philosophy of the last fifty years is indefensible. Though not couched in these terms two recent and very different books may be read as a critique of this view, one urging movement towards the humanities, while the other calling for a turn to science. Both take their central point all the way to their title: in Legal Norms and Normativity: An Essay in Genealogy Sylvie Delacroix tries to explain how it is that law creates norms. Her answer, briefly, is that normativity is the result of day-to-day engagement or confrontation with law?s requirements.169 It is only such ?internal? engagement with the law that can be ?create? the obligatory sense of the law. For our purposes what is interesting is that Delacroix in effect calls for an even more anti-positivist stance than Hart?s and other contemporary legal positivists. She does so, first, by rejecting the midway position adopted by many legal positivists of the observer who can explain and understand law?s normativity by looking at legal phenomena from the perspective of participants. Law is not made up of rules that a person can recite as though they apply to him, for such an understanding does not capture the sense in which these rules are obligating. The ?dynamic? reality of law can only be understood by participants who engage with the law. Second, contrary to the minimalist role accorded to history in the work of legal positivists like Hart and Raz on Delacroix?s account the only way to adequately address jurisprudential questions is historically- situated. Philosophy on this view aims to help people make sense of their lives or understand themselves, and understand what we are and what we think requires knowing more about how we related (intellectually) to our ancestors.170

Brian Leiter?s Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy is a forceful appeal to moving jurisprudence in the opposite direction. In Leiter?s view jurisprudents should adopt materialism, abandon the internal point of view, and align jurisprudence explicitly with the sciences. As Leiter puts it, his favored approach to jurisprudence is ??naturalized? because it falls into place ... as a chapter of psychology (or anthropology or sociology)? which will provide ?a descriptive/explanatory account of what input ... produces what output.?171 History plays little or no explanatory role in this picture, and the only way we could hope to demystify law is in terms of non-normative concepts. More concretely, Leiter has been one of the very few legal philosophers to countenance the rejection of the methodological assumption that jurisprudence should be conducted from the internal point of view, and his examples of what naturalized jurisprudence would look like are all drawn from the work of political scientists who study judicial behavior by statistical analysis of their voting. As he acknowledges, in such studies there is little room for examining judges? attitudes.

What both views seem to be united about is the implicit recognition that the midway position that much twentieth century legal philosophy tried to occupy does not exist. Moreover, both can point to numerous successful explanations. On the one hand, we often use historical narrative to make sense of much that goes on in our lives all the way to the eruption of wars, the causes of economic depressions, or the explanation of doctrinal changes in the law. The explanatory successes of science are so widespread and overwhelming that there is no need to spend much time spelling it out. By contrast, examples of a successful enterprise premised on the attempt to describe a social phenomenon by means of a priori reflection are difficult to come by.

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Full post as published by Legal Theory Blog on March 09, 2010 (boomark / email).