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Methodological background of law

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Law is complex from a methodological viewpoint. Its peculiar features make its unique against the background of other sciences and disciplines.

First, it is not only of a normative but also of a prescriptive nature. Law says how people ought to behave or not, what they may or may not require from others, and what they have to or have not to do if someone ask for that. But normative statements in law are deprived of a descriptive or causal character as opposed to normative statements in empirical science (as a law of gravity) or even social science (as a law of demand and supply in economics).

Second, there is no possibility of empirical verification of the contents of law. Whether the law should or should not comprise precepts of such-and-such import remains far beyond empirical proof. It is a matter of choice.

Third, law is dependent on the shape of the physical world and the limitations inherent in it. It cannot mandate behaviours which are unattainable or force people to do things which are beyond their capabilities.

Fourth, law is fully contingent on humans and their minds. Without humans and their mental operations it would be very difficult to speak about the law, its enforcement and application.

Fifth, law agents, such as judges, advocates and officials, are unspecialized in the sense that they lack some complex theories as to good and evil, empirical and social science or justice (proper distribution of goods/privileges and burdens in a society).

Sixth, the role of authority is prominent in law, while at the same time in law there are not means which enable us to check the correctness of authoritative statements (be they comprised in judicial opinions or scholarly literature).

Seventh, the procedure in which law is authoritatively applied is very specific. It is rigorous, precise, complex, casuistic and often very formal. The outcome of such procedure is obligatory in the sense that a judge cannot free himself or herself from passing his/her decision. There are also very limited means for re-opening such procedure when its being once completed.[1]


Notes[edit]

  1. See Maciej Koszowski, Why Does Legal Reasoning Have to Be Unique?. The Indonesian Journal of International & Comparative Law no. 3/2016, pp. 555–575.


See also[edit]


Bibliography[edit]

Maciej Koszowski, Why Does Legal Reasoning Have to Be Unique?. The Indonesian Journal of International & Comparative Law no. 3/2016, pp. 555–575.


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From Law: Section: Methodological background from Wikipedia: https://en.wikipedia.org/w/index.php?title=Law&action=edit&oldid=878058929


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