Law as an Abstract Object, Law as an Empirical Object: The Relevance of Ontology and Epistemology for Theories of Legislation

Abstract

This article deals with four fundamental epistemological and ontological questions that are relevant for theories of legislation. The two epistemological questions are: ‘To what extent is the law's model of the world based on empirical knowledge, on common sense or on something else?’ and ‘Is there a fundamental discrepancy between what we think to know from empirical sciences and how we think from the internal legal point of view?’ In this paper I argue that in order to be able to answer these epistemological questions, we need to think about legal ontology. I argue that legislators not only create legal concepts, but also the entities that these concepts refer to. The two ontological questions to be discussed are: ‘What is the ontological nature of the objects, properties and relations that legislators create?’ I also argue that some legal objects are abstract, i.e. do not exist in space. Therefore the second ontological question to be discussed is: ‘Are abstract legal objects real, and if so in what sense?’ Only when we have discussed both ontological questions, we can answer the epistemological questions. My answer to the first epistemological question is that to the extent that law creates rather than discovers entities, the law's model of the world is in an important sense not based on empirical knowledge but rather precedes it. My answer to the second epistemological question is that there is a fundamental difference between the legal and the empirical scientific point of view because even though empirical scientists create concepts to talk about objects, properties, relations and the like, only the legal point of view also creates these entities themselves.