HiPhiS Seminar “The Science of Law and Causality”

Tuesday, December 12, 2017, from 5:30 p.m. to 7:30 p.m.
Faculty of Law, Lecture Hall 001 Pétrarque, Ground Floor, Building 2
Free admission

Inter-university seminar on the History and Philosophy of Science, 2017 cycle: "Causes, Foundations, Origins."
Lecture presented by Michel Troper, lawyer, Professor Emeritus of Constitutional Law at Paris-Ouest Nanterre La Défense University, honorary member of the IUF.

Summary:

The title of this presentation may appear to contain a contradiction in terms. Indeed, there is a significant movement that challenges the very idea of a science of law, but among those who accept it, there is a debate between authors who believe that law is a science and others who believe that while law itself is not a science, it can be the subject of a specific science. In either case, it cannot be a causal science. If law itself is a science, it is because lawyers (especially judges) are able to discover the right solution in each case, but the process of discovery owes nothing to causal analysis.
On the other hand, a science of law should confine itself to describing existing norms, i.e., norms established by human will. These wills are certainly the product of a series of causes, but on the one hand, these causes are sociological, psychological, or economic in nature and therefore outside the scope of law, and on the other hand, they determine only the content of the will and not its normativity. This explains the formation of the legislator's will, but not the binding nature of the law, which results only from conformity with the constitution, while the constitution itself cannot be considered the cause of the law.
The introduction of causal analysis into legal science would, however, be of great importance, both in terms of reintegrating legal science into the field of empirical sciences, enabling the combination of the sociological approach and the strictly legal approach, and resolving some of the difficulties of legal theory. These include custom and interpretation. Custom is a repeated practice that is considered mandatory and becomes legally binding. However, while repetition or belief in its mandatory nature can easily be explained by social or psychological causes, its actual mandatory nature cannot be explained in this way. It is now widely accepted that legal interpretation is, at least to a large extent, a function of will and a discretionary act. However, if the interpreter is free to give the applicable text the meaning he or she wishes, it is difficult to understand the continuity and consistency of case law.
We will therefore present a method of legal analysis that allows us to account for and explain these phenomena.
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