Doctrinal Knowledge, Legal Doctrines and Legal Doctrinal Scholarship

Abstract

The essay deals with the methodological foundations of legal doctrinal scholarship. It uses as a starting point two recurrent complaints about legal doctrinal scholarship: (1) it is unable to find its place among the social sciences, and (2) its status as an academic discipline is tainted by ideological commitments. The essay argues that much of this criticism is based on an insufficient understanding of the kind of knowledge cultivated by legal doctrinal scholarship. Legal doctrinal scholarship has a healthy epistemic core. It cultivates a kind of knowledge that is a common feature of normative social practices, and that is not captured adequately by any other discipline: doctrinal knowledge. The analysis offers an account of the epistemological features of doctrinal knowledge. The essay puts special emphasis on the assumption that legal doctrines and legal scholarship have an ideological aspect. For legal scholarship, a tough methodological challenge lies in the obvious tension between its scholarly ambitions and its ideological features. The essay seeks to articulate a few aspects of the view that there is a way to reconcile the ideological and epistemological aspects of legal doctrinal scholarship. The analysis leads to the conclusion that the epistemological significance of doctrinal scholarship lies in giving credibility to the idea that the law has a reflective depth that becomes accessible to us only if we take an internal point of view to its doctrinal aspect.