LEGAL PHILOSOPHY AS METHODOLOGY 29

1. LEGAL PHILOSOPHY AS METHODOLOGY

Juridical methodology has a long tradition, going back to ancient times.
Leibniz praised the classical Roman jurisprudence because of its precision
(subtilitas) and compared it to the method of geometry.2 This non-
problematic methodological conception of jurists oriented towards classical
logic was upset however in the 19th century when jurisprudence developed as
a systematized science of law in accordance with the methodological ideal of
modern (natural) science. Like Leibniz, Savigny attributed to the juridical
procedure a degree of certainty "that can be found only in mathematics".
(Savigny, 1840, p. 19) This approach was criticised by the persecutor
Kirchmann in 1848 in his famous talk on the worthlessness of jurisprudence
as a science. Kirchmann claimed that jurisprudence was not a science at all.
In the meantime the literature concerning juridical methodology has become
in fact formidable. Yet the question about the "scientific character" of
jurisprudence is still of immediate interest.
This can be seen in the vast number of publications dedicated to the topic
(See Wolf, 1953, pp. 27-29, Bockelmann, 1971, p. 29) as well as in the fact
that concrete juridical controversies include many hints at the elementary
rules of scientific knowledge (See Raisch, 1977, p. 29).
These rules and operations in science are central issues in philosophy of
science, a discipline, which grew from the methodological reflections in all
branches of scientific research. Philosophy of science systematizes these
reflections and gives the particular methodologies of the sciences a general
and broad "framework". Undoubtedly, the basic question of juridical
methodology, too, cannot be "internally" solved and separated from the
general problems of philosophy of science. Today's jurisprudence with its
many specialized disciplines is to be found in a close contact with various
fields of contemporary science. It is through reference to general philosophy
of science that juridical methodology is linked with the methods used in
other sciences; at the same time, the peculiarity of the concept of science in
legal sciences can thus be explicated.
The idea that juridical methodology can be incorporated into general
philosophy of science is not new. Already Kelsen referred to "general
philosophy of science" maintaining this to be the way for the
"methodological acceleration" of legal science (Kelsen, 1934). Likewise
Larenz explicitly referred to "modern hermeneutics". However, this program
has not yet succeeded, simply because, for now, there does not exist a
generally accepted philosophy of science which, in its specifications, could
2
Letter to H. E. KESTNER, July 1, 1716, in LEIBNITTI opera omnia, vol 4, p. 269.

E. Oeser, Evolution and Constitution

Springer Science+Business Media Dordrecht 2003
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supply each branch of knowledge with the adequate methodology.

Therefore, irrespective of its reference to a general conception of what one
calls "scientific knowledge", juristic methodology still includes two extreme
positions. One is "scientism", a notion of science based exclusively on
formal logic, mathematics, and empirical facts. The other is "hermeneutics"
coming from the traditional notion of "culture" (Bildung) in the humanities.
It has been always accepted that juridical methodology should necessary
refer to the "true concept" of science (e.g. Kirchmann in the already
mentioned speech). However this would require a general philosophy of
science doing justice to the very pluralism of methods.

1.1. Jurisprudential Concept of Science and the Position of Jurisprudence in

the System of Sciences
Introducing his well-known textbook Methodenlehre der Rechtswissen-
schaften, (Methodology of Legal Sciences) Larenz posed the following
questions:
What is legal science? Is it as far as it is understood neither as historical, nor as social
science, but rather as an autonomous discipline "jurisprudence" science at all? Is it directed
towards gaining knowledge, an intentional mental activity, or just an ordered corpus of
knowledge accepted by a particular legal community hic et nunc? Or is it, perhaps, a kind of
"technical arts", an instruction showing how to handle legal cases according to particular rules
that are to be characterized as practical maxims or conventional norms allowing for even
decisions? Or is it, perhaps, all this at one and the same time? (Larenz 1979)

In what follows I'll present the most important answers to these questions as
far as they appear in contemporary discussions of juridical methodology.

1.1.1. Legal Science as a Discipline of the Humanities or Cultural Sciences

Ever since Dilthey and the neo-Kantians who in German tradition have
separated humanities from the (natural) sciences, legal sciences have usually
been subsumed under the former, also characterized as "cultural sciences"
(Rickert). According to Engisch, this can be justified so: Legal sciences deal
with "norms". Norms, however, are "constructions of the human mind".
Therefore, legal science belongs to the humanities.

1.1.2. Legal Science as a Pure Normative Science

The extreme position of perceiving legal science as a pure science of norms
leads to Kelsen's Reine Rechtslehre (Pure Theory of Law). In the preface to
its first edition, Kelsen emphasized that from the beginning on it had been
his goal to bring legal science "to the level of a true science, a