Entre les mots et les choses : les raisonnements et les méthodes en tant que sources du droit

Abstract

The idea that to have knowledge of law is to have knowledge of legal rules has been put into question not only by researchers interested in Artificial Intelligence (AI) but also indirectly by comparative lawyers. AI has still not been able to define and model what exactly is legal reasoning and comparative law, while recognising that there is a gap between the mentality of the common law and that of the civil law, offers few epistemological explanations for this difference. If legal knowledge is to be found in rules, why has it proved impossible to date to formulate out of the two traditions a model of rules that will serve the whole of Europe ? How can one think in terms of a future jus commune if one scarcely understands exactly what is legal knowledge ? This paper will examine these two generai questions in investigating the nature of legal reasoning in English law. For it is in English law that one finds the rather explicit contradictions between the rule model — which functions at the level ofwords — and the actual techniques of legal reasoning where things themselves seem to be the ontological starting point. In short, there is a need for a new epistemological thesis of law which, in turn, will have to ability to rethink the traditional sources of law, something perhaps that will encourage Western jurists to emphasise legal technique as a formal source of law.