Methodological characteristics of legal science

A science in the modern Western sense may be defined in methodological terms as: (1) an integrated body of knowledge, (2) in which particular occurrences of phenomena are systematically explained, (3) in terms of general principles or truths ("laws"), (4) knowledge of which (that is, of both the phenomena and the general principles) has been obtained by a combination of observation, hypothesis, verification, and to the greatest extent possible, experimentation.

By all five of the criteria listed above, the scholarly researches and writings of the Italian, French, English, German, and other jurists of the late eleventh, the twelfth, and the thirteenth centuries, both canonists and Romanists, constituted a science of law. The phenomena studied were the decisions, rules, customs, statutes, and other legal data promulgated by church councils, popes, and bishops, as well as by emperors, kings, dukes, city magistrates, and other secular rulers, or that were found in Holy Scripture, the Roman law texts of Justinian, and other written sources. These legal materials were treated by the jurists as data to be observed, classified, and systematically explained in terms of general principles and general concepts of truths. The explanations were subject to verification in terms of both logic and experience. To the extent that positive examples of their application could be adduced, and the effects measured, a kind of experimentation was also involved.

The originality of the twelfth-century jurists' contribution to scientific thought lay in their construction of general principles that were consistent with the evidence, and their use of those principles to explain the evidence and to extrapolate from it. They were the first Western scholars to see and develop not only empirical tests of the validity of general principles but also empirical uses for such principles. That the empirical data they examined were existing laws, customs, and decisions did not make their achievement any less astonishing. The available alternative method, derived from Platonic thought as it was then understood, was to use general principles (ideal Forms) to validate theological, cosmological, and political doctrines. But since the Platonic method required the rejection of evidence that did not correspond to the ideal Forms, it would have been ill suited to the harmonization of existing laws, customs, and decisions.

-152-

To take a specific example, the jurists observed that in all the various legal systems under examination the question arose whether one who was forcibly dispossessed of his goods has the right to take them back by force. One solution was reached by interpretation of the Roman law texts of Justinian, where it appears that the Roman praetor had decreed that one who has been forcibly dispossessed of his land (nothing is said about goods) may not take it back by force after a certain period of time has elapsed. The twelfth_century jurists concluded that this rule is equally applicable to goods, since the same purposes are involved in both classes of cases. Further, it had been laid dow n by certain church councils and in individual ecclesiastical cases that a bishop forcibly ousted from hi s bishopric must not resort to force to recover it. A bishopric, it was noted by the twelfth_ century jurists, includes not only rights in land but also rights in goods and, in addition, rights in perquisites __ rights in rights ("choses_in_action").

in the law but stated at this time by the legal scientists to explain the law__________________________________________________________ that persons whose rights

are violated are required to vindicate them by legal action rather than by

"taking the law into their own hands." This hypothesis was verified logically by the proposition that it is a basic purpose of law to provide an alternative to force as a means of settlement of disputes. It wa s further verified by experience, including experience of the circumstances that had given rise to the rule, namely, the disorder and injustice that resulted when disputes over rights in land, goods, and choses_in_action were settled by a series of violent acts of dispossession, first by one of the disputants and then by the other. Such experience reached the level of experimentation when the jurist was able to compare the consequences of diverse legal rules and of changes in legal rules. Rules that were considered unsatisfactory sometimes were amended or repealed or fell into disuse. Rules that were considered satisfactory were often continued. Such "experiments" lacked the exactness of laboratory tests; yet they were a kind of social experimentation, a "laboratory of history" what modern scientists would call "natural experiments." To use modern terminology,

experience, including the experience of applying rules in concrete cases, was viewed as a process of constant feedback concerning the validity both of the rules and of the general principles and co ncepts that were thought to underlie them.

Of course, the science of law was at the mercy of politics: lawmakers could and often did disregard the jurists' findings. In practice, logic and experience were often sacrificed to power, prejudice, and greed.

The verification of general legal principles by logic and experience con- 153-

stituted legal science at its highest intellectual levels; usually, however, the legal scientist of the twelfth century, like his counterpart today, was concerned with what was called much later "legal dogmatics," that is, the systematic working out of the ramifications of legal rules, their interconnections, their application in specific types of situations. To go back to the example of forcible dispossession: once a principle had been established forbidding a person to recapture his property by force, knotty questions arose concerning the remedy of the person forcibly dispossessed. Should he be restored to possession even if he had previously taken possession by force, and even if the person dispossessing him was the true owner? Were the remedies to be the same with respect to goods as with respect to land? Was there a time limit within which the victim of the dispossession might lawfully defend his rights by force ("hot pursuit")? Such questions were not viewed by the jurists primarily as moral or as political questions but rather as legal questions; that is, they were questions to be resolved on the basis of the interpretation of legal authorities_______________________________________________ decisions, rules,

customs, statutes, scriptural texts, authoritatively laid down. The authoritative texts were taken as objectively given; an attempt might be made to show that they were contrary to reason or that they were not useful or that they were historically conditioned, and thus to undermine their authority, but if they withstood the challenges they had to be accepted. They were "facts," and the jurists' task was to organize and make sense out of them. Their methods of doing so were not essentially different from those later used by natural scientists to explore and synthesize other kinds of data.

In addition to the methodology developed by legal science for the discovery and verification of principles implicit in decisions, rules, concepts, and other legal data, another methodology was developed for the discovery and verification of facts in the course of legal proceedings. The proof of facts in court was closely connected with new developments in the study of rhetoric. Rhetoric had not yet become the art of persuasion by appeal to emotion and by ornamentation in speech; it still retained its older Aristotelian connotation of persuasion by appeal to reason. In the twelfth century the emphasis was placed on methods of proof. The concept of the hypothesis was put forward by the rhetoricians to supplement the dialectical concept of the thesis (quaestio). Proof of hypotheses was understood to require the presentation of evidence, which in turn implied the notion of probable truth. This led to the development of a scale of probabilities, in which presumptions played an important role as a form of logic. It also led to rules for avoiding distortion and errors in the presentation and evaluation of evidence. The parallels with law were stressed: a well-known treatise of the twelfth century, Rhetorica Ecclesiastica, stated that "both rhetoric and law have a common procedure." The same treatise defined a case (causa) as a "civil dispute concerning a certain statement or a certain act of a certain person." ⁷⁴ Thus the legal

-154- concept of a case was associated with the rhetorical concept of the hypothesis. The same treatise also stated that to find the truth of a disputed matter four persons were required: a judge, a witness, an accuser, and a defender. The judge was to see to it that the rules of argumentation were not violated, and especially the rules of relevancy and materiality. By the early thirteenth century exclusionary rules had been developed to prevent the introduction of superfluous evidence (matters already ascertained), impertinent evidence (having no effect on the case), obscure and uncertain evidence (from which no clear inferences could be drawn), excessively general evidence (from which obscurity arose), and evidence contrary to nature (which was impossible to believe).

The comparison between legal reasoning and scientific reasoning and the assertion that legal reasoning was a prototype of modern scientific reasoning in the West rest upon contemporary views of science that are not universally accepted. Usually the dawn of modern science is dated from about the time of Galileo, five centuries later. Moreover, Galileo, Kepler, Descartes, Leibniz, Newton, and other leaders of what is now considered the classical period of modern science all shared an antipathy for "medieval scholasticism," even if they shared nothing else. However, it is important that their antipathy was not directed at scholasticism as such but rather at the failure of the scholastics to develop a mathematical framework of explanation. As Alexander Koyre has shown, Galileo and other major thinkers of the seventeenth century took mathematics to be the model for all true scientific explanations. ⁷⁷ Mathematics and its laws, like Platonic Forms in an earlier era, came to constitute the ideal language of modern science. In the nineteenth century, the scholastic method was also attacked from other directions: its emphasis on the purposes of the subject matter being investigated was criticized, as well as its lack of emphasis on the predictive value of its findings. Nevertheless, neither seventeenth-century science nor nineteenth-century science would have been possible without the scientific method first developed by the jurists of the twelfth century. ⁷⁸