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A Theory of Legal Doctrine[Note 1. The author is grateful to Svein Eng, Wlodek Rabinowicz, ...]
Author(s) -
Peczenik Aleksander
Publication year - 2001
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/1467-9337.00173
Subject(s) - vagueness , doctrine , defeasible estate , epistemology , legal doctrine , philosophy of law , philosophy , normative , law , political science , comparative law , linguistics , fuzzy logic
Legal doctrine in Continental European law ( scientia iuris ) consists of professional legal writings, e.g., handbooks, monographs, etc., whose task is to systematize and interpret valid law. By production of general and defeasible theories, legal doctrine aims to present the law as a coherent net of principles, rules, meta‐rules, and exceptions, at different levels of abstraction, connected by support relations. The argumentation used to achieve coherence involves not only description and logic but also evaluative (normative) steps. However, sceptics criticise juristic doctrine for its normative character, ontological obscurity, vagueness, fragmentation, and locality. The author answers this criticism pointing out the following. Normative reason is possible. Liberal ontology, admitting such entities as morally justified law, is possible as well. The vagueness of legal doctrine can be construed as defeasibility. Defeasibility is inevitable in the law and in human thinking in general. Fragmentation of legal doctrine is not absolute. Its theories are linked to overarching moral theories. Finally, locality is not absolute either. Though sometimes restricted to a given state, theories of legal doctrine display relevant similarities to corresponding theories in other states.