Abstract
The paper aims at distinguishing between legal science, properly so called, i.e., the neutral description of the law in force, and so-called legal dogmatics, i.e., the actual practice of academic lawyers. A preliminary distinction is made among (different forms of) interpretation and what the author labels “juristic construction”. The author maintains that legal dogmatics does not simply describe, but mould and enrich the law by ascribing meaning to legal texts (adjudicative interpretation) and, most of all, by developing a great deal of unexpressed rules, i.e. rules that no normative authority ever formulated (juristic construction), in such a way that the law in force amounts to a mélange of expressed and unexpressed rules—both being the result of juristic practice, adjudicative interpretation and juristic construction respectively. As a consequence, legal dogmatics is not the same as legal science—rather, legal dogmatics is part of the object of legal science.
Scientific neutrality is […] a habit of life, […] our way of taking part in political struggle
Norberto Bobbio
“La neutralità scientifica è […] un abito di vita, […] il nostro modo di partecipare alla lotta politica”: N. Bobbio, “Lettera a Nicola Matteucci” (1963), a cura di C. Margiotta, in Materiali per una storia della cultura giuridica, XXX, n. 2, 2000, p. 418.
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Notes
- 1.
J. Bentham, An Introduction to the Principles of Morals and Legislation, ed. by J.H. Burns and H.L.A. Hart, Clarendon Press, Oxford, 1996, pp. 293 f.
- 2.
J. Austin, Lectures on Jurisprudence or The Philosophy of Positive Law, 4th ed. by R. Campbell, John Murray, London, 1879, I, p. 220. Cf. also at pp. 33 and 176 f.: “General jurisprudence […] is concerned with law as it necessarily is, rather than with law as it ought to be; with law as it must be, be it good or bad, rather than with law as it must be, if it be good”; “The science of jurisprudence […] is concerned with positive laws […] as considered without regard to their goodness or badness”.
- 3.
H. Kelsen, Introduction to the Problems of Legal Theory (1934), ed. by B. Litschewski Paulson and S.L. Paulson, Clarendon Press, Oxford, 1992, p. 3.
- 4.
H. Kelsen, General Theory of Law and State, Harvard U.P., 1945, Cambridge (Mass.), p. XIV.
- 5.
N. Bobbio, “Scienza del diritto e analisi del linguaggio” (1950), in U. Scarpelli (ed.), Diritto e analisi del linguaggio, Comunità, Milano, 1976.
- 6.
I refer to legal writings such as textbooks, monographs, commentaries, etc., with a special look to continental legal scholarship.
- 7.
German “Rechtswissenschaft”, Italian “scienza giuridica”, French “science juridique”, Spanish “ciencia jurídica”, etc.
- 8.
Cf., e.g., A. Peczenik, Scientia Juris. Legal Doctrine as Knowledge of Law and as a Source of Law, vol. 4 of E. Pattaro (ed.), A Treatise of Legal Philosophy and General Jurisprudence, Springer, Dordrecht, 2005, Chap. 1. See also A. Ross, On Law and Justice, Stevens & Sons, London, 1958, passim (in particular pp. 9, 19, 46), about what he calls the “doctrinal study of law”.
- 9.
German “Rechtsdogmatik”, Italian “dogmatica giuridica”, French “dogmatique juridique”, Spanish “dogmática jurídica”, etc. The phrase “legal dogmatics” is not familiar to Anglo-American jurisprudence, but is commonly used in continental juristic parlance. Cf. e.g. A. Aarnio, On Legal Reasoning, Turun Yliopisto, Turku, 1977, pp. 266 ff.; R. Alexy, A Theory of Legal Argumentation (1978), trans. by R. Adler and N. MacCormick, Clarendon Press, Oxford, 1989; E. Bulygin, “Legal Dogmatics and the Systematization of Law”, in T. Eckhoff, L.M. Friedman, J. Uusitalo (eds.), Vernunft und Erfahrung im Rechtsdenken der Gegenwart, Duncker & Humblot, Berlin, 1986 (Rechtstheorie, Beiheft 10), pp. 193–210; A. Aarnio, The Rational as Reasonable, Reidel, Dordrecht, 1987, Chap. 3; A. Peczenik, Scientia Juris. Legal Doctrine as Knowledge of Law and as a Source of Law, cit., esp. Chap. 1.
- 10.
D.M. Walker, The Oxford Companion to Law, Clarendon Press, Oxford, 1980, p. 754: “Legal science. Systematized and organized knowledge […] of and about law. […] The term ‘legal science’ may also be limited to systematic thinking and writing about law, as distinct from law making and application of law to practical problems, what might be better described as legal scholarship”.
- 11.
D.M. Walker, The Oxford Companion to Law, cit., p. 750: “Legal scholarship. Systematic research into and thinking and writing about any division or subdivision of legal science. It is mainly the function of the legal scholar or jurist. […] Its purpose may be highly theoretical or severely practical, to elucidate some abstract matter or to reduce to order and make understandable and usable the prescriptions of a particular statute. This activity is sometimes called ‘legal science’, though that phrase seems more appropriate for the total body of knowledge, understanding of which is advanced by legal scholarship”.
- 12.
Cf., however, the concluding remark of this paper.
- 13.
D.M. Walker, The Oxford Companion to Law, Clarendon Press, Oxford, 1980, p. 371: “Doctrines of Law. Systematic formulations of legal principles, rules, conceptions, and standards with respect to […] fields of the legal order, in logically interdependent schemes, whereby reasoning may proceed on the basis of the scheme and its logical implications”.
- 14.
The ground of the following distinction is the simple statement of fact that (almost) every “legal norm has two or more meanings”, and “there is no juristic reason to prefer one of the various meanings to another. […] The view […] that the verbal expression of a legal norm has only one, ‘true’, meaning which can be discovered by correct interpretation is a fiction, adopted to maintain the illusion of legal security, to make the law-seeking public believe that there is only one possible answer to the question of law in a concrete case. […] The view that it is the function of interpretation to find the ‘true’ meaning of the law, is based on an erroneous concept of interpretation. […] The choice of interpretations […] is determined by political motives. Authentic interpretation [i.e., interpretation performed by law-applying authorities] may even attribute to a legal norm a meaning which non-authentic interpretation could never dare to maintain. That is to say, by authentic interpretation a legal norm may be replaced by another norm of totally different content” (H. Kelsen, “On Interpretation”, Preface to H. Kelsen, The Law of the United Nations. A Critical analysis of Its Fundamental Problems, Stevens & Sons, London, 1950, pp. XIII ff).
- 15.
The three interpretations listed above were actually maintained in recent Italian constitutional history.
- 16.
Corte costituzionale, decision 168/1963.
- 17.
Jurists treat such rules as “implicit” in view of hiding the creative import of their constructions.
- 18.
As far as I know, this is especially true for continental legal scholarship.
- 19.
European Court of Justice, February 5, 1963, Case 26/62, Van Gend & Loos. According to the Court of Justice, April 8, 1976, Case 43/75, Defrenne, the mandatory articles of the Treaty apply not only to the action of public authorities but also to independent agreements concluded privately or in the sphere of industrial relations, such as individual contracts and collective labour agreements.
- 20.
Federalist Papers, n. 78.
- 21.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60.
- 22.
Corte costituzionale, decision 1146/1988.
- 23.
See article 16 of the Déclaration des droits de l’homme et du citoyen: “Toute société dans laquelle la garantie des droits n’est pas assurée, ni la séparation des pouvoirs déterminée, n’a point de constitution”.
- 24.
G. Bognetti, “Teorie della costituzione e diritti giurisprudenziali”, in Associazione italiana dei costituzionalisti, Annuario 2002, Diritto costituzionale e diritto giurisprudenziale, Padova 2004.
- 25.
See, e.g., G. Zagrebelsky, Il diritto mite. Legge, diritti, giustizia, Einaudi, Torino 1992.
- 26.
European Court of Justice, July 15, 1964, Case 6/64, Costa: “By contrast with ordinary international Treaties, the EEC Treaty has created its own legal system which […] became an integral part of the legal systems of the member states and which their courts are bound to apply. […] The integration into the laws of each member state of provisions which derive from the Community and more generally the terms and the spirit of the Treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The Law stemming from the Treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The Transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights”. Cf. also European Court of Justice, March 9, 1978, Case 106/77, Simmenthal.
- 27.
Corte costituzionale 170/1984.
- 28.
Supposed gaps, in most cases. Take the following example. Article 87 of the Italian constitution states (among many other things) that the President of the Republic enacts (certain) governmental acts. Most constitutional lawyers, however, are not satisfied with such a simple provision. They wonder about the limits of this presidential power—in particular, they ask in what circumstances the President is authorized to refuse the enactment and, since the constitution gives no answer to such a question, they conclude for the existence of a gap in the constitutional text and try to fill it (see, e.g., M Luciani, “L’emanazione presidenziale dei decreti-legge. (Spunti a partire dal caso E.)”, Politica del diritto, 3, 2009). They do not even suspect that since the constitution states no limits hence no constitutional limits exist. Should we really consider as a gap any case that the constitution simply does not take into account? The supposed gap does not depend on the fact that the constitution fails to regulate the case although taking it into account—it depends on the juristic assumption that the constitution ought to regulate the case. In other words, the gap in question is an “axiological” one.
- 29.
See Corte costituzionale, decision 190/1970.
- 30.
See Conseil constitutionnel, decision 92–308 DC.
- 31.
G. Zagrebelsky, La giustizia costituzionale, 2nd ed., Il Mulino, Bologna 1988, pp. 125 ff.
- 32.
The example shows a logically valid argument, but in most cases juristic reasoning is not deductive.
- 33.
The formula of the title obviously echoes Piero Sraffa’s Production of Commodities by Means of Commodities. Prelude to a Critique to Economic Theory, Cambridge U. P., Cambridge 1960.
- 34.
J. L. Mackie, Ethics. Inventing Right and Wrong (1977), Penguin Books, Harmondsworth, 1978.
- 35.
By the way, criticism and approval of existing law, too—i.e., “censorial jurisprudence”—amount to a second-order (evaluative) language about the law.
- 36.
Provided, as a matter of course, that the rules framed by legal scholarship come into force through the decisions of law-applying organs.
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Guastini, R. (2013). Juristenrecht: Inventing Rights, Obligations, and Powers. In: Ferrer Beltrán, J., Moreso, J., Papayannis, D. (eds) Neutrality and Theory of Law. Law and Philosophy Library, vol 106. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6067-7_7
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