Scientific Method
Scientific Method and Legal Knowledge
This lecture aims to highlight the significance of epistemology for scientific research in general and for legal
research in particular. You can read more about epistemology at:
http://pespmc1.vub.ac.be/EPISTEMI.html
Lecture Notes:
1.
Legal Knowledge
- Why cannot Artificial Intelligence simulate legal reasoning?
- How has the development of new technologies influenced our understanding of law?
- Law firms providing online services have brought the question of epistemology to a head.
- Epistemology (What is knowledge and what is legal knowledge?)
- Law as a system of Rules (H.A.L.Hart and Hans Kelsen). Read more on Hart and Kelsen’s
theories at:
http://www.kentlaw.edu/classes/rwarner/justice/syllabus/hpositiv.html
http://vms.cc.wmich.edu/~ellin/phil313/hart.html
http://www.ejil.org/journal/Vol9/No2/art11.html
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Law as institutionalised practice
Read: Reza Banakar, “Reflections on the Methodological Issues of the Sociology of Law”, in 27
Journal of Law and Society 273-295.
You should be able to download copies of this paper at:
http://www.blackwell-synergy.com/
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Knowledge/Power/Truth (Is knowledge absolute and universal?)
http://hyper.vcsun.org/HyperNews/battias/get/cs632/rept/9.html?nogifs
http://www-personal.umd.umich.edu/~delittle/anthnew3.pdf
2.
“Coherence” in Law
- Some legal scholars argue that legal doctrine produces coherence in law. This coherence is
brought about in a number of ways:
- Firstly, legal doctrine uses such traditional means as argumentation per analogiam, e contrario,
a fortiori, analysis of the purpose of the law etc. The application of these tools increases
coherence of the law.
- Secondly, it enhances law’s systematization: Legal doctrine presents the law as a systematic
whole.
- Thirdly, it consists of overarching principles of law: Legal doctrine presents legal rules under
the umbrella of principles.
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Fourthly, it gives law unity in time: Legal doctrine presents the law as evolving piecemeal: all
parts of the law may change but not all at once.
Finally, it ensures the unity of legal validity. It achieves a high degree of sophistication in Hans
Kelsen’s pure theory of law.
Read more:
http://www.ivr2003.net/documents/ECAPAP.doc
http://www.ivr2003.net/documents/151197AP.doc
3.
Science
- Observation, empiricism and Induction (Knowledge as a product of sensory perceptions) –
development of experimental sciences
http://dieoff.org/page126.htm
http://www.wsu.edu:8080/~dee/GLOSSARY/EMPIRIC.HTM
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Theoretical reasoning, rationalism and Deduction (knowledge as the product of rational
reflection – a priori categories)
http://www.anselm.edu/homepage/dbanach/logemp.htm
http://www.faragher.freeserve.co.uk/induct.htm
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Objectivity (rationality, value neutrality, distance, logic)
http://home.no.net/rrpriddy/lim/5.html
http://uk.geocities.com/balihar_sanghera/ipsrobjectivityandvalues.html
- Development of scientific thought (Thomas Kuhn)
http://www.emory.edu/EDUCATION/mfp/Kuhnsnap.html
http://www.emory.edu/EDUCATION/mfp/Kuhn.html
http://www.newcriterion.com/archive/18/jun00/kuhn.htm
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Social sciences and natural sciences
http://research2.csci.educ.ubc.ca/soc100/lectures/social_scientific_methods.pdf
http://www2.pfeiffer.edu/~lridener/DSS/Weber/WEBERW2.HTML
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Quantitative and qualitative research
2. Feminist Critique
- 1) Objectivity and claim to value-freedom is a male standard of reasoning and 2) law legitimates
oppression and treats women differently.
- The system of male authority structures the institutions and organisational rationality of law.
- The violence pf patriarchy is institutionalised in the practice of legal systems.
- Women’s sense of justice (ethics of justice and ethics of care)
http://plato.stanford.edu/entries/feminism-epistemology/
http://www.aacu.org/publications/pdfs/FAQ1.pdf
Also read chapters 7, 8 and 9 in An Introduction to Law and Social Theory. Edited with Max Travers. Hart
Publishing: Oxford, 2002.
4.
The Inter-Relationship of Theory and Methods
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5.
Methods of inquiry are based on certain epistemological assumption
The method we choose should in line with our basic theoretical assumptions and also what we
ultimately aim to study.
Law and social Sciences
- Law’s epistemology(s)
- Sociology’s epistemology(s)
- Internal and external realities of law
Read: Reza Banakar, “Reflections on the Methodological Issues of the Sociology of Law”, in 27
Journal of Law and Society 273-295.