A LITTLE UNTANGLING IN THE FIELD OF LEGAL EPISTEMOLOGY

Abstract

This article advances four theses in legal epistemology with a view to drawing a critical line of demarcation between contemporary "legal science" and its dominant dogmatic and ideological overinvestments. The first thesis holds that law has no empirical or material existence in the world  (neither in the mode of being nor of having) thereby rejecting theoretical traditions that posit law as an apprehensible "object." The second dismisses any argumentative leap from facticity to law, invoking Hume's interdict against the naturalistic paralogism to challenge those who conflate is and ought under the guise of empirical positivism. The third rejects the ideology of "already-law", e. g., the belief in a pre-constituted and operationally available law that mirrors theory onto practice,  insofar as it obstructs sound legal judgment and lends itself to oligarchic exercises of power. The fourth condemns legal conceptualism, which sows concepts as if law could spring from them by enchantment, identifying in this operation a contemporary avatar of nineteenth-century Begriffsjurisprudenz. Together, the four theses articulate a proposal for epistemological demarcation in favour of a legal modernity that understands law as a practical, procedural and argumentative possibility, and not as an entity, a fact, or a concept.