This blog post examines the origins of the claim that law shares structural similarities with theology, which interprets sacred texts, and offers a perspective to understand how debates over interpretive authority and academic legitimacy unfold.
Jurisprudence, which claims to be a normative discipline, has long been plagued by debates over its academic legitimacy. This is because a single word in a legal code, altered by the exercise of legislative power, can instantly render the accumulated achievements of interpretation useless. Within this problem consciousness, Albert seeks to reinterpret the academic nature of jurisprudence based on critical rationalism, which emphasizes empirical falsifiability.
Albert first problematizes law by comparing its concealed characteristics to theology. This is because law shares a structural similarity with theology in that it derives its authority from official decrees. Just as theology secures its authority through the interpretation of scripture, law also confirms the legal code and interprets it in relation to problem-solving. At this point, scripture or the legal code functions not as an object of scholarly criticism or reflection, but solely as the source and basis of interpretive authority. From his perspective, for jurisprudence to escape its structural similarity to theology, it must accept a binary choice in interpretation: natural law or sociology. The outcome of this choice is self-evident. The view that positive law is constituted and constrained by a normative reality possessing absolute authority can only be sustained by a perspective that believes in a world established by divine power. Albert regards law as a human cultural achievement, belonging to the realm of mutual behavioral regulation among members of society within the facts of social life.
Of course, even in this case, the question of whether to view law realistically or normatively remains. Albert argues that law should be seen as a social fact and jurisprudence as an empirical science. According to his argument, legal statements about norms do not possess normativity themselves, unlike the norms they describe. Ignoring this distinction would cause the ideal of the cognitive grasp of norms to vanish. He acknowledges the normativity of legal texts but states that jurisprudence, which clarifies the meaning of those texts, is distinct from them.
However, Albert’s realist conception of jurisprudence also presents seemingly problematic points. For instance, this is the case when defects exist in legal texts, making active law formation unavoidable. When confronted with the task of law formation in such instances, Albert focuses on the actual practice of law formation. He does not deny that, in law formation, normativists present the purpose that legal interpretation should follow and assert a value-based perspective. However, Albert demands that such purposes or value perspectives be explicitly stated to allow for general evaluation. The same applies to considerations regarding the effects the applied norms or proposed interpretations will have on social life. Since laws and their interpretations act upon the normative system, Albert believes the process of law formation must also mobilize logical knowledge of that system.
Ultimately, the jurisprudence Albert proposes is a social engineering oriented toward a specific value perspective. Under this hypothetically presupposed perspective, its goal is to rationally formulate proposals: interpretations of normative propositions approved by existing law, modifications to the existing legal system to resolve normative conflicts, and the formation of new normative systems through legislation.
In response to Albert’s challenge, Savigny still seeks to justify jurisprudence as a normative doctrinal discipline. According to his explanation, normative doctrine constitutes the legal system alongside law itself, serving as legal propositions outside the law that provide the basis for decision-making in legal interpretation. Within this legal system, the text of the law is recognized as a legitimate legal proposition, and legal propositions outside the law are also presumed legitimate. In short, Savigny views normative doctrine as essential to establishing the legal system, and the jurisprudence that deals with it as fulfilling the traditional and intuitive concept of scholarship.
From this standpoint, Savigny refutes several of Albert’s claims. First, regarding the revelatory model of jurisprudence, he explains that jurisprudence seeks the best possible solutions based on normative doctrine and incorporates critical examination within the legal system. Regarding the interpretive dichotomy between natural law and sociology, he counters that not all legal discourse is natural law-based, nor is all natural law discourse irrational. Concerning the authority of legal statements, he questions whether it is possible to completely strip legal statements of normativity from meta-statements related to law, while also asking why the right to propose acceptable interpretations should be denied to jurisprudence.
Sabini points out that the very attitude of defining only empirical cognition as scientific and seeking to exclude normative cognition from the academic world is problematic. He argues that the distinction between ‘normative/empirical’ should not be equated with the distinction between ‘non-academic/academic’. This goes beyond merely laying the foundation for jurisprudence as a normative discipline; it also demands reflection on critical rationalism itself.
