Abstract
The question this contribution sets out to address is whether or not law can be regarded as a This notion is readily accepted by many, yet it is submitted that a proper theoretical justification for such an assumption is usually missing. The traditional primary sources of law, South African case law and legislation, distinguish between legal practice and legal science, but the basis of the distinction is not clear. However, an entire body of literature in the philosophy of has developed around the question of when a discipline will amount to Various demarcation criteria proposed in the philosophy of are considered. These include that uses the scientific method, is susceptible to falsification, is puzzle-solving within a paradigm or renders beneficial results. None of these criteria offers a satisfactory solution to the problem. The proposition by a group of philosophers including Herman Dooyeweerd, Marinus Stafleu and DFM Strauss, that the answer to the demarcation question is to be found in modal abstraction, is then considered. Modal abstraction amounts to a consideration of reality (persons, things, theories and rules) from one or more defined point(s) of entry. It is an artificial and learnt manner of thinking as it approaches reality from the perspective of one of the modalities of being. For example, juridical abstraction would mean that a cow is considered as the object of someone's proprietary rights. An abstract idea of the cow's characteristics, from a juridical point of view, is formed and the rules of property law are applied. A number of South African legal philosophers, amongst others Van Zyl, Van der Vyver and LM du Plessis, have followed this approach. The South African legislature has also attempted to define the terms science and research, mainly for funding purposes. These definitions are considered and the conclusion is that they do not provide the clear-cut answers one would expect. It will be argued that the nature of activities will determine whether an endeavour is scientific or not. The conclusion is that an alignment of the demarcation criterion developed by Strauss and others and the statutory definitions can provide a workable demarcation criterion. This test is then applied to the activities of law students, academics, practitioners and judicial officers to determine when they will be practising science.
Highlights
In 1935 legal philosopher Huntington Cairns stated that: It is the contemporary belief, in American legal circles at all events, that law or jurisprudence, whatever it may have been in the past, has the status of a social science
Post Introduction to the Law 2 asserts that law would be superfluous had "men lived in a state of complete isolation from each other" and that even the most primitive societies function subject to law
10 For the present purposes the author accepts the explanation of Berman Law and Revolution 557 that the Western concept of law is that it is both "part of the material base" and "part of the ideological superstructure", after he has suggested on 556 that each of the positivist theory of law, the natural law view and the social theory of law provides "one-third of the truth" regarding the nature of law
Summary
In 1935 legal philosopher Huntington Cairns stated that: It is the contemporary belief, in American legal circles at all events, that law or jurisprudence, whatever it may have been in the past, has the status of a social science. Berman and Greiner Nature and Functions of Law 25-26 state: "The legal aspect of social order must be approached partly in terms of the particular moral principles which it embodies, partly in terms of the particular political authorities which shape it, and partly in terms of the particular historical experience and values which it expresses These are not three things but one thing viewed from three different angles." It is asserted that law should be defined in terms of its functions or objectives, not its origins or sanctions – Berman and Greiner Nature and Functions of Law 26; Post Introduction to the Law 7. To provide the requisite contextual background, the first point to consider is the traditional acceptance by lawyers that law is a science
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