The Future of Legal Science in Civil Law Systems

• Author: Horacio Spector
• Position: Professor of Law
• Pages: 255-269

Professor of Law, Dean of the School of Law, and Vice Rector, Universidad Torcuato Di Tella. A version of this paper was delivered as the Tucker Lecture in the LSU Law Center on March 20, 2003. A related paper (forthcoming in the Chicago-Kent Law Review) was presented at the Special Workshop on Law and Economics and Legal Scholarship, 21st IVR World Congress, Lund, Sweden (August 12-18, 2003). I am grateful to my audiences on those occasions for their very helpful questions and comments.

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I want to thank Professor Saul Litvinoff very much for his kind and generous presentation. I am very honored by the opportunity to give the Tucker Lecture, mainly because of the high prestige this Institute of Law has as a center of legal research in the civil law world. I am very grateful, too, because this lecture gives me a wonderful occasion to address an issue that has attracted my intellectual interest for a long time.

As Professor Litvinoff indicated, I will discuss the future of legal science in civil law systems, particularly in private law. I hasten to say that I will not try to predict what legal science will be in the coming years. That depends on a great variety of sociological and institutional factors that do not concern me today. I will rather focus on what legal science could become in civil law systems given the special features of civil law and the theoretical investigations that North American legal scholarship has been making in recent years.

I The Nature of Legal Science

I am wary that the expression "legal science" will sound to many as a convenient label to exalt legal scholarship into a "hard" science, like physics or biology. Interestingly, the feeling of semantic manipulation will vary in intensity depending on the background legal system. While it will probably sound strange to common lawyers, the expression is natural in the civil law world, where legal scholarship has traditionally aspired to become a science-like discipline. Though Jhering's "instrumentalism" and related jurisprudential outlooks have introduced widespread skepticism about the scientific status of civilian scholarship, as late as 1969 John Henry Merryman felt sure to declare: "The contemporary civil law world is still under the sway of one of the most powerful and coherent schools of thought in the history of the civil law tradition. We will call it legal science."¹ Does civilian scholarship have a claimPage 256 to scientific status? How can we explain this contrast between common law scholarship and civilian legal science?

Science is usually defined as an intellectual enterprise purporting to explain and predict empirical phenomena. In fact, scientific theories abstract from the multifarious details of empirical facts and try to subsume them under abstract and universal propositions. At the same time, scientific theories must be subject to empirical testing, though philosophers of science disagree about the upshot of this requirement. While logical positivists maintained that observation data can verify scientific hypotheses, Karl Popper famously claimed that refutability of theories is the mark of science.² Leaving aside this discrepancy, the traditional view regards theorization (i.e., the construction of universal laws) and empirical testing as the two distinguishing features of science.³ Yet a revisionist trend, led by Thomas Kuhn and Paul Feyerabend, challenged, during the 1960s, the claim that scientific theories entail testable empirical statements. Relying on a careful study of the history of science, proponents of this approach deny the possibility of a neutral observation language. If observation scientific language is bound to be theory-laden, there is no simple way of verifying or falsifying scientific propositions, and scientific explanation comes close to Verstehen (i.e., interpretation), the bÍte noire of empiricist philosophers. For simplicity's sake, I will not consider these revisionist views here. As I have shown elsewhere, such views do not allow so neat a demarcation between science and non-scientific disciplines and, hence, are more congenial to the idea that legal scholarship is a science.⁴

I said that civil law scholarship sees itself as a science-like discipline. One explanation of this is the high degree of abstract systematization that doctrinal studies achieved in the civil law world during the nineteenth century. As is well known, the shaping of European legal science began with the reception of Roman Law in the Early Middle Ages and culminated with the works of Savigny, Jhering, and the Begriffsjurisprudenz in the nineteenth century. In this long process legal science evolved from glosses and commentaries on the Corpus Iuris Civilis to abstract and complex theories.⁵

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The great civilian jurists sought to turn a vast array of legal materials flowing from different sources into a coherent and complete legal system premised on an abstract and orderly theoretical structure. For instance, Pandectistic legal science systematized German customary rules and Roman Law. That theoretical structure could be interpreted in two different ways. First, it might be conceived as the systematic reconstruction of spontaneous cultural patterns developed by a certain community. The Historic School, led by Gustav Hugo and Friedrich Karl von Savigny, emphasized the analogy between law and language as cultural manifestations of the spirit of a people.⁶ Savigny thought that in primitive societies "law lives, like language, in the popular consciousness;" this "political element" of law is complemented and transformed in modern States by the systematic contributions of legal science, which he dubs the "technical element."⁷ In Geist des roemischen Rechts, Jhering elaborated on this conception of legal science by analogizing it to chemistry.⁸ Chemistry is analytical in that it seeks to explain complex phenomena in terms of the behavior of simple bodies. In the same way, said Jhering, legal science reduces complex legal rules to simple notions through simple legal concepts. For instance, just as the chemist analyzes water as a compound of two molecules of hydrogen and one of oxygen, the jurist defines the complex notion of "hypothec" as a real right on immovable property made liable for the performance of an obligation. Thus, the civil jurist analyzes legal institutions, reduces them to simple notions, and combines such notions in different ways. The analogy between chemistry and legal science suggests an essentialist reading of legal definitions. When the jurist captures the essence or true nature of a legal concept, he displays the qualities of a real thing. This conception of legal concepts agrees with the Aristotelian conception of science as a body of propositions premised on essentialist, realist definitions. On this view, legalPage 258 definitions are not a conventional way to convey or establish the meaning of legal terms, but true descriptions of the essence of legal institutions.⁹

Second, the theoretical structure of civil law could be viewed as the representation of natural moral laws or moral principles underlying positive law. To be sure, Grotius, Pufendorf, Kant, and other members of the rationalist school of Natural Law did not mean their systems of natural law to provide an account of positive law. Yet, we could interpret the fundamental principles of civil law scholarship, typically gathered in the so called "General Parts," as descriptions of abstract moral principles that are objectively true or valid. According to this interpretation, the analyses of juridical concepts would not be lexicographical or conventional definitions, but normative positions defended under the guise of definitions. This interpretation of legal science resembles Dworkin's reconstruction of common law. Dworkin claims that the fundamental point of common law is "to guide and constrain the power of government . . . " in such a way that ". . . force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified."¹⁰ The end of legal theory, according to Dworkin, is to reveal the most abstract moral principles underlying common law. In a similar vein, the end of legal science, on this interpretation, would be to reveal the most abstract moral principles underlying codified legal materials.

In either reading, legal science provides solutions that go beyond positive law, as literally construed. Contemporary legal philosophers in civil law jurisdictions reach the same conclusion when they claim that the theoretical structure of legal science serves to conceal its true normative role, conferring on contestable legal doctrines an aura of scientific objectivity. Civilian lawyers sometimes achieve this purpose through the fiction of a "rational legislator," a mythical character defined as a legislator who issues norms aiming at coherence, completeness, and efficiency. This fiction orients the interpretation of the code in the direction of their normative and political positions.¹¹

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Civilian jurists also resort to a procedure called "legal induction." Let me illustrate this procedure with the principle that the debtor's patrimony is the common pledge of the creditors. Whereas this principle is laid down in article 3183 of the Louisiana Civil Code,¹²the Argentine Civil Code lacks a specific provision to that effect. However, Argentine jurists maintain that the principle can be inferred from the Code by "juridical induction" or "construction." They invoke various particular provisions that seem to be applications of that principle. For instance, article 961 states that any creditor has a...