1 st Slides of Legal Study FIRST CHAPTER

1 st Slides of Legal Study FIRST CHAPTER Version 12/07/2016 METHODOLOGY IN LEGAL DOCTRINE Grahat Nagara

‘the disciples of law is the disciples of humanity itself’ 2016

References • Advanced Research Methods in the Built Environment, Andrew Knight and Les Ruddock (ed. ), (2008). • Epistemology an Method in law: An Insight From Systems Theory, Interrelationship, Unity, Coherence and Integration of Norm, Hayyan Ul Haq (2014). • Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada by the Consultative Group on Research and Education in Law, Arthurs, H. W. (1983). • Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? , Mark Van Hoecke (ed. ), (2011). • Methods of Legal Reasoning, Jerzy Stelmach and Bartosz Brozek, (2006).

How to use the slides • Red words means my own interpretation of the texts or comment. • Green are statements that not the main reference opinion, but opinion of other source of reference or legal scholar. Which may not reflect the opinion of the main reference. • Check comments for the source of reference and other side notes. • Maybe used in any purpose with quotation and respectfully also the reference used in the presentation. • Reader are encouraged to directly read also literature referenced in this presentation, as my interpretation on the reading material may be incorrect or oversimplifying. • Presentation will be updated, please check latest version.

Law as science 19 th century Science Legal (Science) Universal validity Georaphically limited validity Empirical data Non empirical

Law as science // criticism on legal doctrine Criticism on legal doctrine Rejection • • • General Critic Kirchman. Not only criticized the condition of jurisprudence but even put into doubt the usefulness of legal knowledge, which he labeled valueless and parasitic. • Too descriptive • Autopoietic • Lack of contextual of the law itself Hutcheson. With claimed that judge decide concrete case using intuition and imagination. Therefore no objectively reconstructible method of legal reasoning. • Lack of clear methodology • Limited small scientific communities • Specialisation and geographical limitation • Deal with books without having investigate its usefulness and understanding function Critical Legal Studies. Noted that teaching and investigating traditional methods of law are useless. Which law ‘is politics’, therefore no such thing as method of law. Leads to deconstruction of traditional methodology.

Law as science // criticism on legal doctrine // lawyer reaction Lawyer reactions to development of (empirical) science First world war Defense • • • Defensing autonomousity of law by pointing out practicality, necessity, importance of law in society. Anthropology of law Law and economic 20 th century Legal sociology 20 th century Legal psychology 20 th century Develop narrow empiricist view on ‘science’ (heteronomy). Legal doctrine considered science if it turns into empirical social science.

Characteristic of science and legal science/doctrine Requirements Science Shared aspired knowledge Pursuit of knowledge Shared reason to adopt the knowledge Systematise this knowledge Science is a social phenomenon Legal science Not necessarily pursuit of knowledge Maintenance of legal system Systematise law, but not explanatory, yet justifcatory in nature

Legal doctrine or legal science? Legal science • Include non legal discipline that study law from independent theoritical framework – with concept not primarily borrowed from legal system. • These disciplines may also be practiceoriented, such as economy or sociology, aiming at either enhancing effectiveness or efficiency, but they do not restrict themselves to enquiries concerning the best legal arrangements. • Unlike legal doctrine, the features of legal science are not bound up with the features of the legal system. Legal doctrine • Legal disciplines that study law with primarily legal concept. • Practice oriented with enquiry of best legal arrangements. • Bound up with feature of the legal system.

Law as science // criticism on legal doctrine // lawyer reaction // methodological autonomy vs heteronomy Methodological autonomy versus heteronomy in legal doctrine Autonomy Heteronomy Develop inner criteria of what constitute science Has feature of real science but under assumption of using method of other scientific disciplines. Independent methodology from other science Legal doctrine as science. Does not necessarily applied in straightforward, but adapted in the purpose of the legal doctrine research. Legal doctrine preserved as science.

Develop narrow empiricist view on ‘science’ (heteronomy) Analytical philosophy of law • Incorporate mathemathical, logical, and linguistical into jurisprudence. • Differed into 2 (two) types: Logical (horse-shoe analysis), develop deontic logic, using logic to construct normativity ‘forbidden’, ‘obligatory’, ‘allowed’. Proponents including G. H. von Wright, O. Becker, J. Kalinowski, and A. Ross. Linguistic (soft-shoe analysis). Aim was to describe as precisely as possible how analyzed concepts function in ordinary language. Proponents including HLA. Hart. Legal realism • Jurisprudence can only be stated as science when it uses methods in natural science at least empirically oriented disciplines. • Legal theory must be descriptive in character. • Developed more in school of free law, scandinavian realism, and american realism.

Develop narrow empiricist view on ‘science’ (heteronomy) School of free law • • • Legal interpretation should take into account also three other sources of valid law: customs, authority and free investigation of a judge. Independent court decisions are, ultimately, the results of the judge’s will, the needs of society and balanced private interests. The school of free law then designed to oppose legal positivism. American Realism • Applied the methods of empirical sociology, and also of psychology and economics. • Questioning positivist formalism, American realists claimed to turn to practice and to investigate “real law, ” especially the behavior of judges. • Holmes in his “manifesto” paper The Path of the Law, argued in order to explain what law is, necessary to adopt the perspective of the hypothetical “bad man”, who is not interested in the problem of justifying legal decisions or the rationality of law; rather, with predicting how the judge will act in given circumstances.

Develop narrow empiricist view on ‘science’ (heteronomy) Sociological jurisprudence • • According to Roscoe Pound law should realize and protect six social interests: common security, social institutions (like family, religion and political rights), sense of morality, social goods, economic, cultural and political progress and protection of an individual’s life. In order to realize those goals a new sociological jurisprudence, Pound argues must be developed. Scandinavian realism • Regards law as an empirical fact. • Searched for the “essence” of legal phenomena in the psychological reactions of individuals. • Concepts as “law” or “obligation” are regarded by Scandinavian realism as psychological facts. • Concepts such as “law”, “obligation” and “validity” are purely metaphysical without a reference to empirical facts. They make sense only if we associate them with concrete emotions or psychological reactions caused by the use of such notions.

Develop narrow empiricist view on ‘science’ (heteronomy) – with aim adapting methodology developed in non legal disciplines Economic analysis of law System theory • Posner tried to show that the processes of creating and interpreting law comply with some economic rules. • In the 1980 s attempts were made to formulate a theory of autopoietic systems in the social sciences, including legal theory. • The law is, or at least should be, economically effective, i. e. , its aim is to minimize social costs and promote the increase of social welfare. • Luhmann and Teubner, claimed that autopoiesis, i. e. , the ability to self-regulate, is a characteristic of some social systems in developed societies. • A rational decision is a decision that is economically justified, and, hence, leads to the maximization of the welfare of the given society. • Its function is not, as is usually claimed, to regulate social life and to solve social conflicts, but to secure and promote the normative expectations of a society.

Develop narrow empiricist view on ‘science’ (heteronomy) – with aim adapting methodology developed in non legal disciplines Argumentation theory • Contemporary argumentation theory are based on various philosophical traditions, from ancient logic, rhetoric, dialectics, hermeneutics and eristic to contemporary conceptions of analytical ethics, constructivist theory and the practical and theoretical discourse of Habermas. • Argumentation theories are based on methodological conceptions developed in other scientific disciplines (philosophy, logic, linguistics). Legal hermeneutic • Legal hermeneutic absorp the methodology from general hermeneutic: 1) “methodological” as created by Schleiermacher and Dilthey, 2) “phenomenological” as developed by Heidegger and Gadamer.

Defensing autonomy of law Roman Jurisprudence Historical school • The thesis on autonomy of law in methodology was advocated by Roman jurisprudence. • Historical school along with legal positivism expressed clearly on full methodological autonomy of legal doctrines. • Roman jurist developed fundamentals of general legal disciplines: methodology and theory of interpretation eg. Definitio, regula, interpretatio, or rationes decidendi. • Detachment of legal philosophy from general philosophy as introduced by Kant (Metaphysical Elements of Legal Theory) and Hegel (Principles of Philosophy of Law). • Savigny however reject both a priori deductive method and formal dogmatic, which then proposed empirical research on law as social fact. • Hundreds of topoi are still used both for legal practices and theoritical purposes.

Defensing autonomy of law Legal positivism • legal norms are created and not “discovered”, as the proponents of natural law maintain • there exists no necessary connection between law and morality or between the law as it is and as it should be • creation of law is an expression of the will of the sovereign • • law consists exclusively of norms or rules research of legal concepts has to be distinguished from historical, sociological, or psychological research • the legal system should be considered a “closed logical system”, in which every decision can be inferred from predetermined norms or rules using logical tools. • lawyers should obey the law without any exception, i. e. , all legal decisions should be made on the basis of legal norms (rules)

Defense on empirical misunderstanding • Empirical outlook does not guarantee objectivity, neutrality or the absence of normativity. • Empirical term does not say anything about the kind of external theoritical framework that should be used. • In order to arrive at a coherent picture of law one should not focus on an idealised and necessarily truncated picture of law as based on the model of corrective justice and perfect rights alone

The three stance of methodology in legal doctrine Hutcheson’s based on intuition. While CLS does not necessarily propose law as non methodological science – instead pluralism. There is no unique universally acceptable methodology of legal reasoning. ‘Heteronomicity’ is specific, peculiar to the certain procedures on creation and interpretation of law. Application of legal reasoning is conducted without hierarchy, determined by individual case. Lawyer reason without identifiable methodology Lawyer reason with autonomy methodology Lawyers use methodology adopted from other science Kelsen view. Based on ontological assumption, which cannot serve as common acceptable defense. Pure adaptation Adaptation with modification

[1] For the purpose of this material I will use the term of ‘legal doctrine’ for both legal science which considered developing heteronomy aspect of law and legal doctrine which defence autonomous aspect of law. [2] While various sciences and doctrines of law (p. 10 -16) refer to division of methodology, this sciences or in some other terms used as jurisprudence also differed by their view on the nature of law (p. 21). This however will not be discussed in-depth on this slides. Commentaries.

Legal research styles APPLIED Law Reform Research (socio-legal research/ law in context) Expository Research (Conventional treatises and articles) INTERDISCIPLINARY DOCTRINAL Legal Theory Research (Jurisprudence, legal philosophy, etc) Fundamental Research (Sociology of law, critical legal studies, law and economics, etc) PURE

Theoritical and practical area of legal research Pratical purpose Theoritical purpose Advising decision in accordance to law Understanding legal reality Prescriptive Descriptive and explanatory Providing validity and content of norm Offer theoritical reasoning

Area of of legal research and its legal reasoning from Stelmach and Brozek Argumentative Legal positivism Practical Interpreting and creating law Legal realism Legal-dogmatic Analysis on areas of law Analytic philosophy Theoritical Legal theory and philosophy of law Hermeneutic discipline

Three views on the nature of law Purely procedural law Law as social fact Normative view of the law Questions about the contents of the law have no true answers Law consists merely of a set of acceptable argument forms Dependent a social group about the contents of the law and think about what others think about it What ought to be enforced Only one outcome viable No collaborative sense pursuit of knowledge Explains why the law as fact, despite opinion of individual No law beyond social reality, or that lawyer disagree (while they always do) Branch of morality Enforceability not based on social practices The positive law is only ‘real’ law to the extent that it contributes to the recognisability of law and to legal certainty.

Van Hoecke disciplines in legal doctrine Hermeneutic Van Hoecke propose at least there are 7 (seven) disciplines that can be used for lawyers as angle to present the legal doctrine. • The disciplines has their own analysis methodology of legal research in term of hypothesis and theory building. Argumentative Logical Explanatory Normative Empirical Axiomatic •

Stelmach and Brozek legal reasoning in legal doctrine Hermeneutic Logical Argumentative Analysis • Stelmach and Brozek propose at least 4 (four) of legal doctrine disciplines can be used as legal reasoning method for all areas of legal research. • The methods of legal reasoning does not necessarily exhaust entire spectrum of legal doctrine. • Unlike Van Hoecke however, Stelmach and Brozek specifically expressed that the 4 disciplines is the reasoning that can be used on legal doctrine research, not only the nature of legal doctrine itself.

Hermeneutic disciplines of legal doctrine Methodology • Interpreting texts • Arguing choice about diverging interpretation. • Similar to study of literature and history. • Minimised when try to differ between legal scholarship and legal practices. Legal practices considered more hermeneutical. Object • Text and document are main research object and interpretation.

Argumentative disciplines of legal doctrine Methodology Object • Argumentative emphasized to support interpretation and solution. • Texts and document supported by the argument. • Broader context available from out of interpreted texts. • • Prescription answered by accepted views. Texts and document loosely related with argument, eg. unwritten law, filling the gaps of law, putting aside of text in favour for important value or principle. • Interpretation is the goal and argumentation is the means. • Not aimed at finding contents of law, is aimed at convincing one’s auditorium of a particular legal position.

Empirical disciplines of legal doctrine Methodology • Empirical verification takes places by checking statements in legal doctrine against judicial practices. • Similar to American Realisme proposed by Oliver Wendell Holmes. • Legal doctrine is not mainly an empirical discipline. Object • Published judicial decisions. • Influence of the rules on the member of society.

Explanatory disciplines of legal doctrine Methodology • Explain the reasoning of legal rule validity on given society. • Explained which rule are derived by existence of higher legal norm or underlying values or larger network legal rules or principles. • Explain rule determined behaviour, interaction with other actors. Sociological techniques instead of legal doctrine. • Legal doctrine is not mainly an explanatory discipline. Object • Explanation based on historical, sociological, psychological, economical and the like. Reduces legal doctrine to one or more social science. • Explanation based on an internal logic. Reduces the activity of legal doctrine itself. Nothing is explained, but postulating principles to legitimate the rule derives from them.

Explanatory and understanding discipline Erklaren (explanation) Verstehn (understanding) • Systematisation and generalisation are important also in legal doctrinal understanding. • The notion downplay systematic and generalisation (abstraction) character of scientific knowledge. • As both validity and judicial content are understood by deriving from general legal norms. • Versthende discipline such as history do not allow for generalisation. • Larger part of legal doctrine is to understand concrete state affair (determining validity or content of judicial cases). • Legal doctrinal understanding on judicial decision in term general legal norms rather similar to natural scientific understanding of concrete state affairs in term of general laws of nature.

Behavioural economic on legal research Behavioural economic Assumption Purpose Improving explanatory and predictive of economics Full rationality Explore implication for the law By providing psychologically more realistic assumption on human judgment Based on empirical findings Total self control Exclusive self interest

Axiomatic disciplines of legal doctrine Methodology • Legal doctrine was an applied exact science, with also some empirical dimension. • Law as an algebra of legal concept. • Started in 19 th century, revived on 20 th century but did not prove to be successful.

Logical disciplines of legal doctrine Methodology • Moderate view of axiomatic disciplines, legal doctrine should be exclusively logical in view of systematising the law. • Logic is important but, interpretation of the content of law even more important. • Contents of legal data too indefinite to be purely logical.

Normative disciplines of legal doctrine Methodology and object Process Purpose Describe and Systematising Looking for better law Takes normative position Deal with questions of what law should be Makes choices amongst values and interest H-standards Object Require empirical research, sociology, economical. Internal logic Ends Intersubjective concensus. Knowledge which rules should be enforced collectively

Internal logic normativity of Kelsen Causal relation Descriptive disciplines Imputation Science Normative disciplines Determining existence of obligation / breach through internal logic. Internal logic means interpretation in law and non influence of non legal elements. • Minimise hermeneutic element in legal research. ‘Norm is a meaning’ not ‘Norm has a meaning. ’

Problematic normative discipline Unfalsiable problematic Is realm (das sollen) Mind independent reality shared with all people Every factual proposition binary Ought to realm (das sein) Lack mind-independent reality No common ground for agreement Realms • There is no common ground which can function as a foundation for agreement and where there is no ground for agreement, so runs the argument, there is no room for science.

Problematic normative discipline as science Logical problematic Ought to statement Deductive process Premises of the justificatory argument must be either true, if they are factual, or justified. Ought to statement Cannot be factual nor true/false, therefore need to be Ad infinitum, ‘naturalistic justified. fallacy’ Ought to statement Justification requires an argument with at least one normative premise, which also must be justified.

Jaap Hage and H-Standard on method for normative legal science Method for normative doctrine H-Standard • Acceptance of plurality of independent values which need to be balanced in concrete cases, and with multiple standards that govern this balancing. • The values and the ways in which they are balanced are coherent in the sense that these positions fit in a coherent theory of ‘everything’. • The standard that would be adopted for the determination of which rules should be enforced collectively aims at the promotion of long-term happiness of sentient beings. Traditional interpretive Explanatory of psychology, biology, sociology and economy

Justification in normative disciplines Legal action Mental belief of accepting should be performed Belief Mental belief of accepting as truth Justification Position set

Justification in normative disciplines Being justified Truth Deductively valid argument Deductived argument Transferred to conclusion (what is justified) Transferred to conclusion • First. ‘Being justified’ cannot simply be posed analogous to truth. • Second. Truth conclusion guaranteed by the truth of the premises. Not influenced by addition information. Real life justification based on premises that support the conclusion without guaranteeing its truth. All reasons for or against acceptance must be balanced and that means in turn that justification must be global.

Hans Albert on Justification Problematic Munchaussen trillemma Three possibilities of justificatory argument: Some premises are should be dogmatically accepted as true or justified The need to justify the premises leads to an infinite regress, because the arguments used to justify the premises also use premises which need to be justified, and so on. The premises of a justificatory argument are indirectly justified by the conclusion of the justificatory argument; circular justification.

Jaap Hage Answer on Hans’s Trillemma • Justification necessarily circular, on a based that every position that a person accept is based on the person position set. • Justification cannot be based on reality, as our contact with reality it through what we believe about reality itself. Hans Albert trillemma not necessarily problematic at all.

Coherentism Advantage • Global nature of justification • Theory of coherence Justification of a position consists in the position being an element of a wider set of positions which somehow ‘cohere’ with each other. Does not require a foundational set of positions which are considered to be justified without further reasons; immune to criticism. Disadvantage • Justification exist in a mutual realtion means that its connection with ‘world outside’ is lost. • Notion of coherence is hard to specify.

Types of coherence Epistemic coherence Normative coherence Integrated coherence Includes every position that should be accepted in the light of its content (the counterpart of logical closure) Does not include any position that should be rejected according to its own content (the counterpart of consistency)

Coherence of isolation of reality and defence Critics on coherence A set of positions may be coherent while all positions contained in it are false. The elements in the set justify each other, but there is no guarantee that the content of the set as a whole somehow reflects reality. Defence Confuse justification with reality. One does not come up with a coherent set of positions from scratch.

Coherency test on justification Rational determinant Existing set of position Provide corrected exisiting set-- add or remove set • A-rational determinant • Position sets are biased toward the past. A person being justified in accepting something. Cause spontaneous change to the contents of set • Can only take place on the basis of existing Justification relative held by particular person. Original set of position

Spontaneous position and ‘the world outside’ Pre-assumed • Some of position reflect external world. • There are external world that reflect spontaneous position. • External world exist on perceived impression. Agreement of belief by different persons. Agreement on position is the outflow of our cognitive apparatus. Agreement of procedures that lead the same outcome.

Jaap Hage on justification in normative disciplines • There is no principal difference between the justification of positions that are deemed ‘factual’ and positions that are deemed ‘normative’. • The alleged ‘gap’ between ‘is’ and ‘ought’ does not a-priori exclude the possibility of a normative science. • The very abstract method for science ‘Develop a coherent set of positions which includes a position concerning the question you want to answer’ is the same for all sciences, including normative ones.

Jaap Hage On Legal Reasoning / Method for Legal Doctrines Critics The question in legal doctrine should be differed: 1) contents of law, 2) what the law should be Some author consider law in according the view on the nature of law eg. as social fact Only reasonable when the view of law as normative discipline adopted Assumption Consequences Pursuit of knowledge Reasoning can be normative Consists of norms that ought to be enforced collectively Coherent set is required Methodology Reasoning has to be able to answer the HStandards Heteronomy, either in pure sense or adaptive H-Standards provide standard to determine what is the ought to

Legal research stages Empirical data usage Wording and checking research hypothesis Theory building

Empirical data collection and use Data collection Validity as qualification Normative source Authoritative source • Binary choices. Statutory Case law • How to verify validity? Positivity? Implementation? Coherence? Hierarch. Y Treatise Non binding precedent Principles of law Custormary law Binding precedent Scholar legal writings Degree of authority • Degree based on acceptance, cocensus, relevance. • Delicate degree of case law need to understand representativeness in publication.

Research object in normative legal doctrine Positive law • Rule that easily known to people. • Rule that people will easily agree about. • Rule that should be enforced by collective means, if and to the extent that it contributes to legal certainty. • Rule that legitmately democratic.

Wording and checking research hypothesis Problem finding Spontaneous problem finding Prior observation Selection of empirical data Legal problem Guided by legal theory and basic assumptions Non neutral activities Hypothesis does not necessarily refer to what the author had in mind. Defining research questions Linked to precise meaning and scope of legal concept, rules, principles, or constructions No specific limitation including if the question is to challenge the paradigmatic view of law

Theory building in legal doctrine Meta theory Definition of law Role of law in society Strength ‘Scientific theory’ Coherence (non contradictory) Views and concept of reality Deductible to testable hypothesis Legal doctrine theory existence (validity) and interpretation of legal concepts, rules or principles theory of valid legal sources and their hierarchy methodology of law argumentation theory legitimation theory shared world view (common basic values and norms) Capacity to cover a domain as large as possible Capacity to generate a large amount of testable hypotheses

Stages in building theories Ordering reality Concept formation Abstraction, logical coherence, simplicity Underlying concepts and view or interests Systematising law Combining interpretation as whole

“The messy work product of the judges and legislators requires a good deal of tidying up, of synthesis, analysis, restatement, and critique. These are intellectually demanding tasks, requiring vast knowledge and the ability (not only brains and knowledge and judgment, but also Sitzfleisch) to organize dispersed, fragmentary, prolix, and rebarbative materials. These are tasks that lack theoretical breadth or ambition of scholarship in more typically academic fields. Yet they are of inestimable importance to the legal system and of greater social value than much esoteric interdisciplinary legal scholarship” Richard Posner (2007)