Two types of jurisprudence from a perspective of critical rationalism

Abstract

Our understanding of legal ideas is most reflected in the ability to categorize them unambiguously. At the same time, modern science faces many difficulties in categorizing legal ideas. Problems associated with categorizing complex authors such as F.C. von Savigny or L.L. Fuller are just one example. In the light of these challenges approaches that go beyond traditional views are becoming increasingly relevant. An example of such an approach is the critical-rationalist perspective on the categorization of legal ideas. This article aims to comprehensively reconstruct this critical-rationalist typology. The key role in achieving this goal is played by the intellectual legacy of Friedrich Hayek as a representative of the epistemology of critical rationalism who managed to adapt it for understanding jurisprudence. As a result of a comprehensive reconstruction of the critical-rationalist typology of legal ideas implicit in Hayek’s works we can conclude that, from the perspective of critical rationalism, all legal ideas can be divided into two categories: “critical” and “Cartesian”. The difference between these two categories lies in how much a given legal idea is based on the belief in the intellectual capabilities of human mind. The belief that human mind can effectively govern legal system of the whole society in a centralized manner generates a Cartesian view of law as a set of consciously created rules of a specific kind. The irreducibility of law to consciously constructed prescriptions due to the human mind’s inability to manage a complex social system will reflect a different, «critical-rationalist» perspective on law. This perspective will include a ban on centralized management of legal system of the whole society, as well as an explanation of such “informational” properties of that system, which exceed the capabilities of any human mind.