HiPhiS Seminar: “Legal Science and Causality”

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

Interuniversity Seminar on the History and Philosophy of Science, 2017 Series: “Causes, Foundations, Origins.”
Lecture presented by Michel Troper, legal scholar, Professor Emeritus of Constitutional Law at the University of Paris-Ouest Nanterre La Défense, and honorary member of the IUF.

Abstract:

The title of this presentation may seem to contain a contradiction in terms. Indeed, there is a significant school of thought 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 argue that, while law itself may not be a science, it can be the subject of a specific science. In either case, it cannot be a causal science. For if law itself is a science, it is because legal professionals (particularly judges) would be capable of discovering the just solution in every case; yet the process of discovery would owe nothing to causal analysis.
On the other hand, a science of law would have to limit itself to describing existing norms—that is, norms established by human wills. These wills are certainly the product of a series of causes; however, on the one hand, these causes are sociological, psychological, or economic in nature and therefore lie outside the realm of law, and on the other hand, they determine only the content of the will and not its normativity. This approach can explain the formation of the legislator’s will, but not the binding nature of the law, which results solely from conformity with the constitution, whereas 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 for reintegrating legal science into the realm of the empirical sciences, for enabling the combination of the sociological approach and the strictly legal approach, and for resolving some of the difficulties in legal theory. These include, in particular, custom and interpretation. Custom is a repeated practice, regarded as binding, that becomes legally binding in fact. However, while repetition or the belief in its binding nature can be easily explained by social or psychological causes, its actual binding 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. Yet, if the interpreter is free to ascribe any meaning they wish to the applicable text, it is difficult to understand the continuity and consistency of case law.
We will therefore present a method of legal analysis that accounts for and explains these phenomena.
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