THE SCIENTIFIC NATURE OF LAW - eScholarship@McGill

Erik W. CHINIARA

Student ID – 260524932

THE SCIENTIFIC NATURE OF LAW

LLM Thesis – McGill University Faculty of Law, Montreal

Under the supervision of Prof. Tina Piper

August 2020

A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of

the LLM in General Law (Thesis) program 2018-2019

©Erik W. CHINIARA – 2020

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ABSTRACT

This thesis is structured around the famous question What is law? that legal scholars have been

trying to answer for centuries. I start with an assumption that law is a science, similar to

mathematics. The purpose of my work is to analyze from a theoretical and philosophical

standpoint but also to observe from a methodological and practical angle the scientificity of law.

This thesis should be read and approached by engaging with the law as a concept that is

structured, reflected upon, understood and practiced scientifically.

RÉSUMÉ

Cette thèse s'articule autour de la fameuse question Qu’est-ce que le droit ? auquel les juristes

tentent de répondre depuis des siècles. Je pars du principe que le droit est une science, similaire

aux mathématiques. Le but de cette thèse est d’analyser d’un point de vue théorique et

philosophique, mais aussi d’observer sous un angle méthodologique et pratique la scientificité

du droit. Cette thèse doit être lue et abordée en regardant le droit comme un concept structuré,

réfléchi, compris et mis en pratique de manière scientifique.

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“The science of law, by achieving a complete, uninterrupted account of its chosen phenomena,

would succeed in doing what the physical sciences in their field had already done. A legal science

acting in this way would have to systematize not only present and past forms but all possible

forms. Just as to astronomers the movement of a new comet represents only one of the

possibilities which they have already forecast, so every new social phenomenon must be viewed

as the realization of a predicted possibility. This does not mean that legal science will set itself up

as the eternal oracle of all history, although it includes in its system all social forms, even those

whose emergence must await the most distant epochs. On the contrary, it is not concerned with

the content of the predicted phenomena but only with the forms which make the phenomena

social.”

William Ebenstein, Pure Theory of Law (South Hackensack, N.J.: Rothman Reprints., 1969) at 52

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ACKNOWLEDGMENTS

l would like to express my sincere appreciation and gratitude to all those who helped make this

thesis possible. I would like to thank, in particular, my supervisor, Prof. Tina Piper, for her

patience, guidance, encouragement and very constructive feedback and advice provided

throughout the process.

I would also like to salute McGill University - Faculty of Law, my professors and peers for giving

me the opportunity to express myself on a topic that remains pretty controversial among jurists.

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TABLE OF CONTENTS

Page

Abstract

……………………………………………………………………………………………………………………………… 2

Acknowledgments

……………………………………………………………………………………………………………………………… 4

Introduction

……………………………………………………………………………………………………………………………… 7

Chapter 1 – Can law be a science? A conversation with our predecessors

……………………………………………………………………………………………………………………………… 15

a/ What is law, the unanswerable question?

……………………………………………………………………………………………………………………………… 15

b/ To define or not to define?

……………………………………………………………………………………………………………………………… 27

c/ A multitude of approaches

……………………………………………………………………………………………………………………………… 29

d/ Is law a science?

……………………………………………………………………………………………………………………………… 50

e/ Visual representation

……………………………………………………………………………………………………………………………… 53

Chapter 2- The scientific practices and processes of law: a deterministic exercise

……………………………………………………………………………………………………………………………… 54

a/ The scientific teaching of law

……………………………………………………………………………………………………………………………… 54

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b/ The law: a scientific process

……………………………………………………………………………………………………………………………… 71

c/ Visual representation

……………………………………………………………………………………………………………………………… 86

Chapter 3 – If law is a science, then jurists are scientists

……………………………………………………………………………………………………………………………… 87

a/ The quest for truth

……………………………………………………………………………………………………………………………… 87

b/ The legal ecosystem

……………………………………………………………………………………………………………………………… 93

c/ Lawyers and mathematicians, same thing?

……………………………………………………………………………………………………………………………… 98

d/ “Legal algorithms”: a tangible example of law’s scientific nature

………………………………………………………………………………………………………………………………... 107

e/ Visual representation

……………………………………………………………………………………………………………………………… 112

Conclusion

……………………………………………………………………………………………………………………………… 113

Final figure - the scientific nature of law

……………………………………………………………………………………………………………………………… 116

Bibliography

……………………………………………………………………………………………………………………………… 117

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INTRODUCTION

“The law is reason free from passion” said Aristotle. This quote is commonly used to introduce

the study of law to first-year law students. For my introductory course in law school, titled: Law

in a World of Multiple Legal Orders, the professor started the first class saying the following: “The

first session will focus on a very simple question: What is law?”

At that very second, as we were starting to take notes, it seemed like a fairly easy question, to

which our professor would undoubtedly have a simple response. A single definition, we could

then use as a baseline, throughout this course, throughout our legal education and probably for

the rest or our legal careers.

I went to law school and on my first day expected to leave the classroom knowing, at least

superficially, what law is. Never had I been so wrong in my entire life…

It’s at this second, when the professor asked that simple question What is law? that the premise

for this thesis all started. We’re talking about ten years ago… And it is only now that I’m finally

getting the chance to put it all on paper.

The professor went on for over an hour giving the class a multitude of definitions of the term law,

comparing different legal systems and jurisdictions, talking about the sources and the practices

of law, and referring to a number of legal thinkers and philosophers. For a simple question, the

answer was pretty confusing. For some reason, he insisted on describing law in French, although

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our course was entirely in English, and the professor was a native from Toronto. “Law in French

is le droit but it can also mean la loi, which translates into statute.” I now understand, and

hopefully you will too, after reading my thesis, why his transition to French was so vital in helping

me build my understanding of what law is.

He also raised a number of sub-questions, as if the class wasn’t already confused enough… “What

forms can law take” he asked. A question to which not a soul in the class even attempted to

answer.

After almost two hours of taking notes, without really knowing what the professor was trying to

convey, he concluded this first session by saying:

“I’m afraid I am going to be very disappointing today, because I cannot answer the

question: I cannot tell you what law is. You’re going to say, aren’t you a lawyer? Don’t you

practice law every day? You don’t know what law is? I cannot answer the question what

law is. I don’t know, no one knows what the true nature of law is. Of course, we’re

surrounded by rules, regulations, norms, court decisions, constitutions, contracts; what

we can call the sources of law. But in its archetype, in its essence, in its nature… what is

law? I do not know.”

It appears that the professor himself was aware of the ambiguity of the definition of law.

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An interesting way of starting law school. While most students left the lecture hall regretting

having even thought of studying law, I was more excited than ever to try and uncover the mystery

of what law is.

This brings us to today. After studying the law and working in the profession for some time, I’ve

come to realize that indeed, many before me and my first-year professor had tried to answer the

question. While the legal community has not embraced a single answer, generations of jurists

have been refining our understanding of law. Our predecessors invited jurists after them to keep

reflecting on and thinking about what law is, what we do as jurists and how we do it. My work is

a modest attempt to live up to the defining literature on the question of law that has driven

jurists for generations, to keep digging and searching for an answer.

The angle I take in this short contribution is not to necessarily try to find an answer to the famous

question. Scholars have long tried to define law by looking at what makes law, law, or by

observing the impacts law has on our everyday lives to then give it a greater social meaning. My

approach will be different from what we’ve seen in the past. I will start with what may be a

controversial assumption but that nonetheless will be explained and justified throughout the

thesis. The assumption is that law is a science. Not a pseudo-science lost between social sciences

and humanities, but a formal, autonomous and self-identifiable science. Just like the science of

mathematics or physics, the science of law can rely on itself to be understood and identified.1

The purpose of my research is to try to understand whether the law can be appreciated in its

1 Robert P. George, The Autonomy of Law: Essays on Legal Positivism (New York: Clarendon Press, 1999).

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own right as an objective standalone concept2. In other words, I want to show that law is a science

and that jurists are scientists.

It is my belief that the law can be understood as a stand-alone concept developed for a single

purpose while being the product of individual societies. Such a view allows for the appreciation

of law as an objective, quantifiable, and identifiable concept. If law is understood in such a

manner, it is necessary to identify the language through which it is expressed. By language of

law I mean the methodologies and processes relied upon to understand the law.3

There have been so many different answers to the question WHAT is Law?. This should not be a

surprise to anybody, seeing how the question itself as a stand-alone query is inherently

subjective. It forces us to look at the context we live in to offer an answer and has led to equally

subjective answers. How do we overcome this subjectivity? How can we cross the red line of

normative legal thinking and find refuge in stronger and more objective answers? For me, to

understand the concept of law we need to look into the nature of the concept itself. Because I

strongly believe that the work of a jurist is that of a scientist, it is my intimate conviction that if

we want to find an accurate answer to the question of What is law? we need to position law in

the realm of science and uncover the scientific nature of law.

2 The term “concept” does not refer per se to H.L.A Hart’s Concept of Law. I use the term concept as a “synonym” to “idea.”

The thesis is about an idea of law. The idea of law as a science. The term “concept” brings together the way we study, understand, and practice law: studying, understanding and practicing law like a science. The science of law is an observation on the form of law as a knowledge-based system. This will be discussed throughout the thesis. 3 Anna Pintore and Mario Jori, Law and language: the Italian analytical school, (Liverpool, U.K: Deborah Charles Publications, 1997).

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Throughout my work, I intend to show that the law can be appreciated in its own right as an

objective and measurable concept, by looking at what the law is and studying in-depth the

constructs and logic behind legal reasoning and thinking. I will also explore how the law is

identified by non-jurists and processed by jurists themselves. My work will be divided into three

parts. The first part will study the law as scientific concept by delving into centuries of literature

and analyses on the nature of law. The second Chapter will take a step back and will focus on a

number of associated methodologies (e.g., the Case Method) and processes (e.g., the use of

technology in law and process of legal publishing) that enable us to identify the law as a scientific

phenomenon. The final Chapter will be more hands on in observing the practical considerations

that testify to the scientificity of law by looking at the work of jurists (e.g., thinking like a lawyer

and the work of judges) as well as the intellectual and rational similarities between law and

formal sciences (e.g., logic and mathematics). Every Chapter will end with a modular diagram,

highlighting the systematic nature of legal reasoning and the process discussed in that Chapter.

The thesis is structured in a way where Chapter One opens the conversation on the scientific

nature of law by putting all cards on the table and identifying a number of scholars who’ve

reflected on this question and elaborated ideas. Chapters Two and Three will uncover and lay out

my arguments on the scientificity of law. The central argument of this thesis, which will merge

towards the end of Chapter Two settles the debate on the question What is law? by uncovering

the nature of law and by fleshing out the distinction between law as a science and Law as a policy

or law as the result of a process of scientific reason vs policy outcomes. Chapters One and Two

will build towards this argument and Chapter Three will offer concrete examples to illustrate its

validity.

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This thesis might seem slightly unconventional, for not only is it heavily based on understanding

the scientific nature of law through visual modular representations, but the reader will also notice

a number of simple equations, story-based illustrations and dialogues. A concluding modular

representation at the very end of the thesis will summarize my thought process and try to present

visually what the scientific nature of law looks like. I’ve chosen this unconventional approach for

two reasons. The choice of including flowcharts and equations is obvious: It’s my understanding

that if something cannot be expressed modularly and through equations, it is not scientific. I’ve

purposely chosen to use fictional dialogues and stories to lighten the mood. Discussing law, its

nature and its scientificity can quickly turn into a very serious and somber debate between jurists.

I want this piece to be as engaging as possible while remembering that it’s not because we’re

jurists discussing philosophy that we can’t also be original and roleplay our way through the

arguments.

The second reason for stepping out of the “traditional” thesis approach was my attempt to

produce a piece of legal philosophy. Philosophy is “an activity people undertake when they seek

to understand fundamental truths about themselves, the world in which they live, and their

relationships to the world and to each other. Those who study philosophy are perpetually

engaged in asking, answering, and arguing for their answers to life as most basic questions.”4

While I will not have the pretention to call myself a legal philosopher, I could say that through

4 Florida State Department of Philosophy: “What is Philosophy” online: https://philosophy.fsu.edu/undergraduate-study/why-philosophy/What-is-Philosophy>

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this thesis I want to tell a personal story about my quest in understanding what law is. This quest

stems from my personal experience as a jurist. I want the reader to relate to my argument on the

scientificity of law. While some might disagree with the conclusion, I want them to understand

where the argument is coming from. My quest to uncover the scientific nature of law is a personal

endeavor. I therefore wanted to add my personal touch to this thesis.

My story will build on the efforts that have been conducted previously by legal scholars who have

extensively worked on understanding what law is by starting with those who had a more formalist

conception of law and who saw law as a standalone concept.5 My work will aim to modestly

contribute to understanding and identifying the scientificity of law. I will argue that law is a

science and that jurists are scientists. Once we start appreciating the law as a scientific

phenomenon, we will then be able to approach the law with an objective, understandable and

neutral discourse that uses deductive scientific reasoning.6 This thesis will undoubtedly leave a

lot of questions unanswered. Some definitions and arguments might seem confusing at first, but

it’s important for the reader to understand that the thesis itself is structured as a process that

should be read and criticized as a whole. Imagine my thesis is a BLT Bacon-Lettuce-Tomato

sandwich. The first Chapter is the bacon, the second is the lettuce, the third is the tomato and

the diagrams are that homemade mayonnaise you just need to add life to your sandwich.

Without one of these ingredients, the BLT is just incomplete and doesn’t taste good.

5 Jan Woleński,"Formal and Informal in Legal Logic" Approaches to Legal Rationality (New York: Springer, 2010) 73 at 86 and; Frederick Schauer, “Formalism” (1988) 97:4 Yale LJ 509 at 549 6 Jovan Brkić, Legal Reasoning: Semantic and Logical Analysis (New York: P. Lang, 1985).

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When going through my thesis I also strongly urge the reader to abide by the ancient

parliamentary rule of anticipation. The argument on the scientific nature of law should make

sense and all the Chapters should come together towards the end of the thesis, so let’s not fall

foul of this rule of anticipation and be too eager to discuss a topic that will be raised further down

in the paper.

I encourage the reader to make a note of all the confusing arguments that are detected

throughout the thesis and see if they find clarity to them as they reach the end. The reader might

be unsatisfied with the answers provided on the scientific nature of law. The arguments put

forward and conclusions that are reached are open to being challenged.

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CHAPTER 1 - CAN LAW BE A SCIENCE? A CONVERSATION WITH OUR

PREDECESSORS

The assumption that law can be studied and understood as a science stems from a question that

jurists have been asking themselves for generations: What is law? In this first Chapter, I will

assemble the different definitions, or at least attempts at a definition, that a number of legal

scholars have come up with over the years. My approach will undoubtably be biased, as the

philosophers I’ll be engaging with are jurists and thinkers who have advocated for a more

scientific understanding of law.

a. What is law, the unanswerable question?

Most certainly influenced by the cultural environment and academic up-bringing they’ve had;

legal scholars have, throughout the years, individually and in light of the evolution of our

societies, come up with certain definitions of law. They’ve considered law as a system of norms

or a system of rules, law as an imposed command, law as a contract binding people together to

create social cohesion, law simply as the binding decision of a person at specific time under

specific circumstances, or law as tool for the Politika. The story of the law is one of generations

of jurists who have compiled their knowledge and enthusiasm for the law and who have left us

with an immense number of questions to reflect on; but still no single answer to the question:

What is law?

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This lack of certainty around the meaning of law, the seemingly impossible task for the legal

community to agree on a single definition of law and this century-old struggle to come up with a

consensual definition around what law is could perhaps be seen as a task not worth such a

burdensome exercise. If so many before us have tried and failed, perhaps there is no single

definition of law. Maybe law is undefinable. But have we given it all we have? Is defining law

really an impossible task? Perhaps there is an angle we haven’t tackled yet. What would it take

for the law to be definable?

Before we delve into trying to associate law to a science, we should preemptively define some

other terms. As jurists, possibly part of the realm of science, let’s take the argument step by step

and reason syllogistically. In this first Chapter, I will outline a number of different philosophical

approaches to law. These will not be approaches I will necessarily fully adopt or support, but

rather concepts or theories that I think are key in building a solid argument on the scientific

nature of law. I will attempt to emulate Kant in his methodology, by bringing together different

visions of what law is to foster a more inclusive argument on the nature of the concept. I am not

interested in defining law, but rather in trying to show why defining law is an exercise that

testifies to the scientific nature of law. I want to show that law in theory, but also in practice,

adopts methods of scientific reasoning. Law is a science not only by virtue of its nature but also

in the way the law is studied, taught and practiced.

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My objective through this quest is to rid our community of jurists of the uncertainty and

doubtfulness as to the nature of law that Hart describes in the first pages of this book.7 If we are

able to position ourselves on the scientific ladder, just like chemists and mathematicians, we will

not feel the need to ask ourselves what law is anymore.8

There have been several attempts to define law. Many have influenced my work and I will rely

on them in this thesis. However, they’ve all started their quest for a definition by placing the law

at the heart of human activity: law as a social phenomenon. While indeed, the law ultimately

needs to be studied and discussed as a product of and for society, I believe one could start his or

her quest in defining law by looking at its conceptual nature, i.e., law as a form of knowledge.9

We often associate the philosophy that seeks to understand the practice of law as an acquisition

of knowledge to the formalist school of thought. Amongst other perspectives, we will indeed be

looking at the scientificity of law as a knowledge-based concept. However, a number of different

philosophical approaches will be dealt with, seeing how there are a number of scholars who have

spent a lot of time reflecting on defining the law by considering its potential scientific nature. The

reader will have the opportunity to engage with these scholars in this first Chapter.

Science, knowledge and law? Are we talking about the same thing?

7 H.L.A Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) 8 Ibid at 1 9 This is an understanding of law that I borrow from legal formalists. One of the formalist aspects I embrace is this thesis, is the idea that the form of law is what makes law, law. It’s the internal structure (knowledge) of law that makes law, law and that makes law a science. This argument will be dealt with in greater detail throughout the thesis.

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Let us first agree on the terms that are being used in this thesis. Two key terms will keep coming

up: law and science. The purpose of the thesis is to understand what law is. There would be no

point in pretending to have a definition of law at this stage. However, the reader should keep in

mind that I will be studying law as a concept as the result of an objective way of reasoning. While

this might seem confusing now, the reader will have, hopefully, grasped the concept by the end

of the thesis.

With regard to the notion of science, I will adopt the position that science is a way of thinking

and reasoning. In other words, I would describe science as a systematic process that delivers a

certain output (answers a question) based on the input (knowledge or information) give to the

system.10 We can think of science as the journey that takes us from a question that is posed to

the answer that is provided. The journey being a systematic process. As an illustration, we could

imagine the following:

Figure 1: scientific reasoning: a systematic process

For a more specific definition of science, let’s look at the work of the Science Council in the United

Kingdom.11 In 2009, the Council came up with a definition of science: “the pursuit and application

10 H. Inhaber & M. Alvo, “World science as an input-output system” (1978) 1:1 Scientometrics 43 at 64. 11 A public-funded research organization aimed at becoming a think tank for scientists around the world. it is a Competent Authority subject to the European Union directive 2005/36/EC. The Scientific Council was founded in 2003 and presided, until 2007, by famous Welsh physicist, Sir Gareth Gwyn Roberts.

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of knowledge and understanding of the natural and social world following a systematic

methodology based on evidence.”12 This definition was endorsed13 by renowned British

philosopher Anthony Clifford Grayling, whose work on metaphysics and philosophical logic have

made him a global reference on the philosophy of thought.14 I find this definition interesting

seeing how it offers a perspective that seems to embrace both the natural (biology, chemistry,

earth science etc.) and social sciences (economics sociology, anthropology… etc.). The definition

of science presented by the Science Council is relatively broad and includes four key terms:

knowledge, systematic, methodology and evidence. The definition is broad to the extent that any

academic discipline could be characterized as scientific. Such an observation on the broadness of

this definition could lead us to think, that perhaps science just like law, does not have a specific

definition. There might not be such a thing as a scientific discipline. Perhaps science is simply a

way of reasoning or a methodology that “qualifies” certain disciplines: the science of something

(e.g., the science of nature, the science of medicine, the science of law…). One could then ask

what it means to qualify a discipline as “scientific.” We could argue that calling a discipline

scientific means that it can be studied and understood as a system that delivers a certain output

based on the input that is given to the system. I could reformulate this to say that science is the

systematic quest to understand a discipline (x) by using knowledge that is available to us.

12 In 2009, the Science Council was the first body to offer a general definition of science. The Science Council, Our Definition of Science (2009), online: Science Council <https://sciencecouncil.org/about-science/our-definition-of-science/> 13 The Science Council’s definition of science was endorsed by A. C. Grayling in 2009. Ian Sample, What is this thing we call science? Here's one definition ... (March 2009), online: The Guardian <https://www.theguardian.com/science/blog/2009/mar/03/science-definition-council-francis-bacon> 14 The concept of “philosophy of thought” comes from a book by A. C. Grayling, Truth, Meaning and Realism: Essays in the Philosophy of Thought, which is a collection of philosophical essays on the “theory of meaning,” the meaning of things as well as the notion of “truths” and “assertibility.”

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Prof. A C Greyling tells us that "because science denotes such a very wide range of activities a

definition of it needs to be general; it certainly needs to cover investigation of the social as well

as natural worlds; it needs the words "systematic" and "evidence"; and it needs to be simple and

short.”15 My explanation of “science” laid out above is a working definition that I will be using in

this paper.

While I find the Science Council’s definition very insightful and representative of my definition of

science in this thesis, it seems to leave out an important element. By describing science as the

method used to understand the natural and social world, the definition feeds into the classic

dichotomy between natural and social sciences. The Council seems to omit in this definition what

is commonly known as the formal sciences (i.e., mathematics, computer, logic, computer science

etc.), which are described by Washington and Lee University as “an area of study that uses formal

systems16 to generate knowledge.”17 For the purpose of this thesis, when referring to both the

natural and formal sciences together, I will use the term hard science.

The difference between natural and formal science is worth making. The methodology of natural

science is often empirical while formal science uses logic as its principle methodology. Both hard

sciences are interesting in this thesis. We will notice throughout this thesis and notably in the last

15 Supra at 14 16 Defined by the Encyclopedia Britannica as: “logistic system, in logic and mathematics, abstract, theoretical organization of

terms and implicit relationships that is used as a tool for the analysis of the concept of deduction. Models—structures that

interpret the symbols of a formal system—are often used in conjunction with formal systems.”

The Editors of Encyclopaedia Britannica, Formal system (1998), online: Encyclopedia Britannica

<https://www.britannica.com/topic/formal-system>. 17 The Washington and Lee University’s definition of “formal science.” The Washington and Lee University, Formal Sciences, online: The Sciences at W&L < https://my.wlu.edu/the-sciences-at-wandl/formal-sciences>.

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Chapter that the strongest argument that can be made in favor of the scientificity of legal

reasoning is based on the observation of formal scientific methods in legal reasoning.

Having explained where I stand on my definition of science and scientific reasoning, it’s important

to remind the reader that the purpose of this thesis is not to give a clear-cut definition of science

or law. As mentioned, such a definition might not even exist. Greyling rightful states that “science

denotes a very wide range of activities.” I’m very much aligned with this observation.

Because this thesis is about the scientific nature of law, one must acknowledge the human

elements that come into play when trying to understand law. The study of law, unlike biology,

does not rely on our natural environment but rather on our societies, thus there are social

elements to the study of law. Many thinkers have explored the social aspect of science. In their

book Laboratory Life,18 Bruno Latour and Steve Woolgar discuss social constructivism in science.

For Latour and Woolgar scientific phenomena exist because of the “social knowledge system

which conceives them to be so.”19 For Latour, studying science is a social activity. Latour’s

sociological approach to scientific knowledge was met with a lot of resistance by a number of

scientists in the 1990s which led to what is commonly known as the “science wars,” a concept

that dates back to the 1960s when American philosopher Thomas Kuhn’s published a book titled

Structure of Scientific Revolutions in which he challenges the traditional conception of science as

objective and neutral truth-finding exercise. Latour builds on this idea and goes as far as claiming

18 Bruno Latour & Steve Woolgar. Laboratory Life: The Construction of Scientific Facts (Princeton: Princeton University Press, 1986). 19 Anna Maria Tammaro and Susan Myburgh, Exploring Education for Digital Librarians: Meaning, Modes and Models (Oxford: Chandos Publishing, 2013) at 218.

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that science is to some extent politically charged and cannot be dissociated from policy. While

Latour’s reasoning might seem radical to some, I find myself agreeing with him in the aspect that

the knowledge (input) of the systematic process is socially constructed. This does not mean,

however, that the systematic process itself is socially constructed.

Figure 2: science, a systematic process based on socially constructed knowledge

Latour goes even further in his sociological and anthropological argument. He claims that

scientists construct their own set of facts through the scientific process. For Latour not only is the

input socially constructed but so is the process. As Andreas Beck Holm puts it,20 according to

Latour sciences “do not exist independently of the network for social practices that enables their

existence.” Needless to say, I strongly disagree with Latour on this point. While elements that

are external to the systematic process (i.e., knowledge) can be socially constructed, the process

itself is not, since the process is the tool that always delivers an output regardless of the facts. In

other words, the system (i.e., scientific process) is neutral and objective even if the elements we

input into the system are socially constructed.

20 Andreas Beck Holm, Philosophy of Science: An Introduction for Future Knowledge Workers (Frederiksberg: Samfundslitteratur,

2013) 133 at 135

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In mathematics just as in law, the process is the logic that guides our reasoning. Regardless of

what the mathematical problem is or what the facts of a case are, logic is the unbiased element

that delivers the result or output. This approach will be explained in more detail and with specific

examples when we look at Kelsen’s work and even more in the third Chapter.

French sociologist Pierre Bourdieu, who also strongly argued in favor of the social constructivism

of science, takes a more nuanced stance on the matter. Bourdieu often talks about the “scientific

field,”21 which is what he describes as a “system of objective relations.” While Pierre Bourdieu,

just like Latour, sees science as a social construct, he acknowledges the autonomy of scientific

findings, while Latour sees scientific facts as the result of some sort of social consensus that can

be negotiated (since science, just like policy, is politically charged). I find Bourdieu’s observation

more balanced and I welcome it as part of my reasoning on what science is.

Bringing the conversation back to law, it’s important to acknowledge the sociological aspect of

law when discussing the science of law. When we study law, we are trying to understand what

law is. We must keep in mind that today, in 2020, we are studying law in a specific social context.

The elements and examples we are going to use to describe law are taken from the world we live

in. As jurists we are influenced by our environment. This subjectivity is going to feed into our

understanding of law. This subjectivity is what I referred to earlier as “the input,” and knowledge

that are specific to the society and era we live in (i.e., the socially constructed knowledge and

facts we look at when studying law). While this input changes as our societies evolve, the way

this input is processed to then deliver and output does not change with time. This process opens

21 Pierre Bourdieu, “The Specificity of the Scientific Field and the Social Conditions of the Progress of Reason.” (1975) 14:6 Soc. Sci. Inf. 19 at 47 (SAGE Open Med)

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the door to the idea of having something we can call legal science, a logic-based system fueled

by facts (facts being knowledge that can be socially constructed).

Before moving forward in our quest to understanding the scientific nature of law, let’s look at

science from a more practical angle by looking at mathematics as an example, an approach also

shared by Immanuel Kant. There’s a question that comes up here and that needs to be addressed.

It’s the question of whether or not mathematics is a science. Looking at the scientificity of

mathematics will prove to be very insightful. The reader will come to realize towards the end of

the thesis that legal reasoning and mathematical reasoning share certain similarities as we will

see that both law and mathematics are logic-based systems.

I put to one side the debate over whether mathematics is a science by referring to Canadian

mathematician Dr. Stefan Bilaniuk,22 who claims in a short essay titled Is mathematics a science?

that mathematics is certainly a science in the broad sense of "systematic and formulated

knowledge." This bring us back to our explanation of science outlined above. Here, Bilaniuk

settles the debate, to some extent, by giving us what could be seen, once again, as a generic

definition of science.

As another example, we can look at the work of Immanuel Kant. When discussing his philosophy

of mathematics, Kant adhered to the Frege-Russell program on mathematics as being based on

logic. Without going into too much detail, let me outline the basics of the Frege-Russell approach.

The idea is to view mathematics as deriving purely from logic. This approach is interesting for us,

22 Dr. Stefan Bilaniuk is an Associate Professor of mathematics at Trent University in Ontario.

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as we will see in this Chapter but mainly in the third Chapter of this thesis, that law, or what we

will refer to as legal reasoning, follows the same pattern of construction. Frege23 sought to make

mathematics more “precise” and “explicit” than what his predecessors like Euclid24 had laid out25.

Frege, along with British philosopher Bertrand Russell, came up with a new approach which was

to “ground arithmetic in pure logic by defining mathematical concepts in logical terms or showing

it as deducible from logical premises.”26 In Critique of Pure Reason, Kant embraces this approach

in his philosophy as he refers to the “synthetic” nature of mathematics as a way of “emphasiz[ing]

the irreducibility of mathematical propositions to the fundamental principles of logic.”27 This

position would, according to Gordon Brittan, Professor of Philosophy at Montana State

University, reconcile Kant with Leibniz's view that “all mathematical propositions can be

"reduced" to definitions and the principle of contradiction.”28

A number of other great thinkers have also alluded to the scientific nature of mathematics.

Benjamin Franklin29 famously said, “What science can there be more noble, more excellent, more

useful for men, more admirably high and demonstrative, than this of the mathematics?”30 The

23 Friedrich Ludwig Gottlob Ferge was a 20th century German mathematician, logician, and philosopher. 24 Ancient Greek mathematician who is often described as the father or geometry. 25 Bryan Magee and A. J. Aye “Frege, Russell, and Modern Logic” in Great Philosophers Podcast (Films Media Group, 1987) online: < https://ffh.films.com/id/9336/Frege_Russell_and_Modern_Logic.htm>. See full interview online <https://www.youtube.com/watch?v=ZOnzBSWIAz>o> 26 Ibid 27 Gordon G. Brittan Jr., “Kant's philosophy of mathematics” in Kant's Theory of Science (Princeton: Princeton University Press, 2015) 45 at 48. 28 Ibid 29 American physicist and mathematician of the 18th century. He’s also known for being of the Founding Fathers of the United States of America. 30 Benjamin Franklin, Memoirs of Benjamin Franklin, Vol. 2 (New York: Derby & Jackson, 1859) at 454

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famous American mathematician Benjamin Pierce31 reminds us that “mathematics is the science

which draws necessary conclusions.”32

This small parentheses on mathematics will ultimately lead us to our discussion around what law

is, as we retain two key elements of scientific reasoning. The first being science as a knowledge-

based system and the second being science as a manifestation of logical reasoning.

Having explained what science is, for the purpose of this thesis, it’s now important to understand

what we mean by knowledge. Does understanding science ultimately help us in understanding

what knowledge is? When discussing the science of law or legal science where does knowledge

fit?

This first Chapter discusses these three concepts, science, law and knowledge simultaneously.

We first discussed the notion of science, in the next section of this Chapter which will look at

knowledge as a concept defined by Immanuel Kant33 and use his methodology to offer a similar

approach to understand the scientific nature of law. We will use Kant’s reasoning in defining the

concept of “knowledge” as an example and tool to understand law. Knowledge will also be

referred to in this thesis as an essential characteristic of law that helps uncover its scientific

31 19th century mathematician. Professor of algebra theory and philosophy of mathematics at Harvard University. 32 Benjamin Peirce, Linear Associated Algebra (New York, D Van Nostrand Publisher, 1882) at 1 33 Renowned 18th century German Philosopher

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nature: law as a body of knowledge and thus a science. While the purpose of this thesis is not to

provide a clear-cut definition of law, knowledge or science, these three notions are explained

and contextualized to offer a comprehensible understanding of what I describe as the scientificity

(or scientific nature) of law.

b. To define or not to define?

Traditionally there are two schools of thought on the history of philosophy and thus knowledge.

Rationalists34, such as Descartes, Spinoza and Leibniz, argue that knowledge is based on reason.

Empiricists35 like Locke, Berkeley and Hume believe that knowledge is built through experience36.

Before moving on, it’s important for us to clarify that we will not be spending time discussing the

history of knowledge and arguing what and what does not constitute knowledge. The point I am

trying to make is that just like for law there have been so many different definitions and

approaches to what knowledge is. Over time, there have been many different claims as to the

nature of legal knowledge and the organization of the discipline of law. The questions posed by

34 The fundamental difference between Rationalists and Empiricists is their understanding of where knowledge comes from. Rationalist, tend to believe that there are forms of knowledge that are natural, innate to human nature and that are based on reason and logic. For most rationalists there are fundamental truths such as mathematics, logic and the difference between right and wrong (morality) that are difficult to challenge. On the other hand, Empiricist would consider themselves to be more practical and realists. For most Empiricists, knowledge is a journey based on experience, trial and error. One could argue that empiricism is based on facts of life and observations. Adapting this approach to science, for example, means being able to test data and observations and draw conclusions based on real experiences. One could argue that empiricism enables us to progress and evolve based on information we gather around us. These differences are interesting to highlight in this thesis. Undoubtably our understating of what law is will be different depending on whether we take the rationalist or empiricist approach. I’ve decided to take the Kantian approach, that will be described in the coming sentences. 35 Ibid 36 Gordon G. Brittan Jr., “The anti-reductionist Kant” in Kant's Theory of Science (Princeton: Princeton University Press, 2015) 2 at 6.

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scholars about the concept of knowledge mirror the questions that have been asked about what

law is. Immanuel Kant offers a pragmatic solution to the problem, by adopting the idea that

knowledge is a sort of mix between “understanding” and “sensibility”37 or reason and

experience. In Critique of Pure Reason38 Kant makes a distinction between a priori knowledge

and a posteriori knowledge. The former is based on reason and the latter on experience39. Kant’s

inclusive definition probably does not satisfy all thinkers but at least settles a debate by giving

generations to come a pragmatic definition to work with.

Throughout this thesis, I will follow the same approach Kant took in defining knowledge by

offering a pragmatic explanation of law as a scientific concept. I will not seek to come up with a

fully tailored definition that would satisfy all schools of thought. My approach might even be

contradicted by most contemporary legal thinkers, who like Latour might resist the idea of law

as a science and therefore as a standalone discipline. My intent is to show law is not a natural

science or a social science. Law is its own science by virtue of its nature and its practice.

Throughout this thesis, we must keep in mind my definition of science as a broad concept of

systemization and ignore the natural science vs social science dichotomy which does not apply

for the purposes of this thesis.

37 Ibid. Kant takes an approach that I will follow in my quest of defining law. I believe he takes a measured approach on wanting to choose between two established ways of thinking. For Kant, knowledge is nor solely innate based on reasons nor is it purely the result of experiences. It’s somewhere in the middle. My approach to law will be the same. Law is not a natural science nor is it a social science. It’s somewhere in the middle. 38 Immanuel Kant, Critique of pure reason (New York: Willey Book Co, 1899) 39 Immanuel Kant, “Of the difference between Pure and Empirical Knowledge” in Critique of Pure Reason (London: Palgrave Macmillan, 2007) 41 at 62

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The first order of business will be to shed light on the theories that I have relied upon to come to

such a conclusion and the thinkers I have engaged with to help structure my argument around

the correlation between law and science. H.L.A Hart’s Concept of Law, Jerome Frank’s work on

legal thinking, Oliver Wendell Holmes’ prediction theory of law, going all the way back to Leibniz

and Langdell, among other scholars, will strongly influence my work. These are thinkers who

undoubtedly don’t always share the same position on what law is but who offer elements of

theory that pertain to comprehending the scientific nature of law.

c. A multitude of approaches.

Many throughout time have set forth on a quest to define law. One of the biggest warriors has

been H.L.A Hart. While Hart never directly expressed an interest in coming up with a single

definition of law, he was interested in understanding why jurists were so keen to define law. In

the first pages of his book Hart asks: “[…] how is it that the question ‘What is law’ has persisted

and so many various and extraordinary answers have been given to it.”40 This question Hart asks

is at the center of my thesis. Hart explains jurists’ interrogation of what law is through the idea

of uncertainty. According to Hart, jurists are confronted with “doubtful”, “questionable” and

“challenging” cases.

40 H.L.A Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at 3.

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While Hart raises a key question, he doesn’t, in my opinion, spend enough time trying to

understand the importance of such hesitation and doubtfulness among jurists. On the first page

of his book Hart states: “No vast literature is dedicated to answering the question What is

chemistry or What is medicine as it is to the question What is law […] Yet in the case of law, things

which at first sight look as strange as these have often been said […] as if they were revelations

of truths about law, long obscured by gross misinterpretations of its essential nature.”41 In this

paragraph Hart summarizes the purpose of my research. He conveys two very important

messages. The first is that unlike other disciplines in the so-called social sciences, law is unique

in the sense that jurists have for generations wanted to understand what law is. The second is

the urge to find truth in what law is. Hart stops there. He does not go much further into

investigating “why” jurists have been asking the question of what law is and the apparent

obsession jurists seem to have with what law is. He moves on to explain the lack of answers by

highlighting the law’s complex nature, an argument he lays out thoroughly in his book. My

approach will be to spend more time on this question of why jurists are asking what law is.

It seems like jurists have, consciously or by virtue of their practice, attempted to find the truth in

the accumulation of knowledge i.e., law, they dedicated their lives to. For generations, jurists42

have been on a quest to define the law. From the most hardcore believers in legal certainty to

those who, more and more today, believe that the nature of legal science is anything except a

41 Ibid at 1 42 A number of jurists such as Hans Kelsen, Christopher Langdell, H.L.A Hart and Roscoe Pound will be referenced in this thesis.

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single immovable reality but rather the product of millions of different legal realities - they all

have, in their own way, attempted to give us a definition of law. To some extent, they’ve

succeeded, in their own right and in accordance with their own knowledge and experience.43

Jurists, when reading my thesis, might argue that there are different legal traditions and cultures

around the world and therefore we cannot offer a single understanding of law. Law is indeed the

result of social construction and is thus subject to the specificities of different cultures. For those

jurists, it’s important to understand that I’m not questioning the social nature of law, as

mentioned earlier in this Chapter when we discussed the work of Latour and Bourdieu on the

definition of science. Later in this thesis is will become apparent that I distinguish between law

as a scientific concept and Law as policy.

To contextualize my work, we will now consider what other jurists have said about law and how

they have attempted to define law. I will not go through every single school of thought or legal

thinker, but I will focus on a couple of jurists who have offered an approach to what law is that I

will then be able to use in setting out my ultimate argument on the scientific nature of law. I am

engaging with scholars who’ve asked questions similar to the ones I’m raising on the nature of

law. These well-known scholars, Kelsen, Hart, Holmes Frank and Langdell were chosen

specifically as each has contributed to my effort of trying to define law. Kelsen and Hart by their

43 Whether we look at Kelsen’s Pure Theory of Law, Langdell Case Method, Roscoe Pound’s numerous publications on the nature and purpose of law and other jurists who have written on the what law is, they all brought forward arguments that we can now rely on to uncover the scientific nature of law. A number of these arguments are referenced in this thesis.

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own quest in offering a definition to law; Holmes and Langdell in their use of intellectual and

pedagogical methodologies that leads us to believe that law does have a scientific nature to it;

and finally Jerome Frank who along with Roscoe Pound gave birth to a debate on what law is by

looking at the practices of the law and the purposes it serves. The dialogue between these legal

thinkers below, will lay the foundation for understanding the scientific nature of law.

Now, let’s a imagine this story: Hans Kelsen, H.L.A Hart, Oliver Wendell Holmes Jr, Jerome Frank

and Christopher Columbus Langdell … walk into a bar and see posted on the wall “New book

coming out soon: The scientific nature of law. What would the conversation look like?

H.L.A Hart: Chris, this book is for you, probably another one of your disciples.

Oliver Holmes: Wait a second, before we declare victory on Langdell’s ideas, let’s be sure we

really understand what this book is about. What do you think this author means when he says,

“scientific nature”? Are we talking about law being a scientific discipline in which case, I would

gladly give the floor to Langdell or are we talking about “the science of law” and here we’d

probably want to hear from Keslen and his famous “pure theory.”

H.L.A Hart: We’re not getting into this debate again. No way are we going down the path of these

reductionist theories of law.

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Too much of the way people experience law is left unaccounted for in a reductive theory. The

theme of theory needing to account for the way law is actually experienced […] is central to Hart's

rejection of a scientific empirical approach to law.44

Jerome Frank: On this I could not agree more with Hart. As I’ve previously written “Many rule

skeptics have urged the desirability and possibility of creating a legal "science" built on the model

of the natural sciences. […] I have been at pains in later writings to point out, more in detail, what

I consider the folly, and the undesirability, of striving to create [..] a legal science.”45

Christopher Langdell: I indeed think that you’ve all taken my work for granted. Clearly the

methodological approaches I’ve developed are still very much alive, today more than ever. The

tools of legal pedagogy that I so strongly fought for are not only of the utmost relevance but are

emulated in various ways not only in the teaching but also in the practice of law.

The debate went on for hours, all five legal thinkers started to reference their work, theories and

influencers. Below is a summary of the entire conversation:

44 Brian Bix, 'H.L.A. Hart and the Hermeneutic Turn in Legal Theory' (1999) 52(1) SMU L Rev 171 45 Jerome N. Frank, "Legal Thinking in Three Dimensions" (1949) 4094 Yale Faculty Scholarship Series 21.

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When exploring the relationship between law and science a first reference should be Christopher

Langdell, who in his 1871 A Selection of Cases on the Law of Contracts, claims that “law,

considered as a science, consists of certain principles or doctrines” […] “best, if not the only way

of mastering the doctrine effectually is by studying the cases in which it is embodied.” 46

Langdell’s focus is on law as a scientific discipline. He outlines that the only approach to a proper

understanding of law is by following a specific scientific method that we commonly refer to as

the Case Method. Just like Langdell, Cook believes that legal scholars are constantly in the

process of wanting to find correlations between law and hard sciences and position the law as a

scientific concept47. Cook goes a step further and gives us examples of how scientific traits are

reflected in legal reasoning. By laying out these examples, she reinforces the argument of the

scientific nature of law and brilliantly summarizes Langdell’s thought process that she outlines in

five points.48 According to Cook, Langdell’s methodology is scientific for it is based on objective

observations, the identification of concepts, the development of strategic experiments and tests

to confirm the observations and the assessment of a result.49 She also draws a very interesting

parallel to Newton’s hypothetico-deductivism theory,50 a model that most certainly influenced

Langdell. As she states: “Newton's work became a model that other sciences sought to emulate,

46 C. C. Langdell, Selection of Cases on the Law of Contracts (Boston: Little, Brown, and Co., 1871) at vi 47 Nancy Cook, “Law as Science: Revisiting Langdell's Paradigm in the 21st Century” (2012) 88 N.D. L. Rev. 29 at 30. Cook states that “academics are inclined to seek parallels between their own professions and the "hard" sciences, and look for analogic techniques, methods or ideologies that would permit a claim to the scientific appellation.” 48 Ibid 49 Ibid 50 Ibid at 27. The hypothetico-deductivism model is a scientific method that is based on a hypothesis that is then verified or falsified through tests and experiments. It becomes clearer throughout this thesis that legal reasoning has adopted a similar type of methodology.

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and his approach was foundational to much of natural philosophy throughout the eighteenth and

early nineteenth centuries.”51

But Langdell’s biggest influence was a man we often forget when discussing the scientific

approach to law. In the words of M. H. Hoeflich: “Gottfried Wilhelm Leibniz … must be given

fullest credit for the popularization and specific explication of the geometric paradigm in law.52”

Indeed, with Francis Bacon in England, Leibniz was the first to advocate for the systematization

and rationalization of law and juristic methodologies.53 With Newton, Leibniz is probably best

known as the father of modern mathematics having invented what we call calculus. Yet before

being a mathematician, Leibniz was a trained jurist who was able to change the way we perceive

law and a legal system by imagining a deductive and mathematical understanding of law. He

authored the geometric paradigm, which is a theory that understands deductive reasoning as set

of specific axioms from which are derived from other axioms that leads to a theorem. It builds on

the concept of deductive reasoning (general to specific) “as a philosophical concept and a new

method of legal reasoning,”54 which opened the door for law to understood as a scientific

concept.55

51 Ibid at 28 52 M H Hoeflich, "Law and Geometry: Legal Science from Leibniz to Langdell" (1986) 30:2 Am J Leg Hist 99. 53 Ibid at 100 54 Ibid 60 at 102 55 Ibid. As stated by Hoeflich: “the geometric paradigm when allied with the newly discovered Roman law […] provided a solution to this legal-philosophical Gordian knot. Once one accepted that law could be made logical and that legal argument could be shaped along deductive lines, legal results became more predictable, certain, and comprehensible. Once one combined commonly accepted principles of law with the deductive method of legal reasoning, law did, indeed, become a science.”

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In the 18th century, the Common Law in England was still emerging and full of confusion and

continental states were still very much influenced by medieval and feudal rules. Leibniz offered

an approach to legal reasoning that ultimately turned law into something more rational; a science

that could be relied upon. The geometric paradigm offered structure, consistency and more

predictability in the legal process. This gave rise to a certain “language of law” and confidence in

“legal decisions.” As Hoeflich concludes “Law could now be seen as transcending the whim of an

individual judge or confused case-law. Law, in theory and practice, became the application of

logic and reason to first principles, and so long as the reasoning was sound, proper results would

always follow.”56

This new approach to law also influenced the academic world, and probably inspired Langdell.

Establishing a methodological relationship between law and science made it possible for law to

find a place in the academic world. The legal discipline was seen as a science to which we could

apply “university methodologies of reasoning and argument.”57

Just like Leibniz’s, Langdell’s scientific approach to law is not a reduction or simplification of what

law is, but a structured and logical approach to understanding and analyzing the reasoning

behind legal thinking and legal decision-making, while carefully trying to determine through a

56 Ibid 57 Ibid at 101

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well-thought-out method, the outcome of the law that does not offer as many interpretations as

one would think:

“the number of fundamental legal doctrines is much less than is commonly supposed; the

many different guises in which the same doctrine is constantly making its appearance,

and the great extent to which legal treatises are a repetition of each other, being the

cause of much misapprehension. If these doctrines could be so classified and arranged

that each should be found in its proper place, and nowhere else, they would cease to be

formidable from their number.”58

Somebody who had something to say about all of this was Jerome Frank:

Jerome Frank: This is like having a conversation with Roscoe Pound.

In his book Law and the Modern Mind,59 Frank dedicates an entire chapter60 in which he,

hammers Roscoe Pound for his indecisiveness. Frank can’t understand how a ‘supposed’ realist

58 C. C. Langdell, Selection of Cases on the Law of Contracts (Boston: Little, Brown, and Co., 1871) vi at vii. 59 Jerome Frank, Law & The Modern Mind (New Brunswick N.J: Transaction Publisher, 2009) 60 Ibid at Part II, Chapter 1 titled “Dean Roscoe Pound and the search for legal certainty”

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like Pound cannot detach himself from mechanical jurisprudence and continues to try to push for

“no judge-made law” in certain instances.61

Frank spent a lot of time responding to criticisms from Lewellyn and Pound on his, so to speak,

inaccurate legal positions. One point that Frank and Pound strongly disagreed on is the idea of

certainty in law and legal decisions. In an essay dedicated to delegitimizing “rule-skeptics,” Frank

asks: “Why do many lawyers and non-lawyers insist that legal certainty now does or can be made

to exist to a far greater extent than it does or ever possibly could? Why this persistent longing for

a patently unachievable legal stability?”62

For Frank there is no such thing as legal certainty. Frank, a pragmatist who called himself a

“constructive skeptic,” strongly criticized Pound’s view of commercial and property law as

successful examples of where having a “mechanical application” of law proved to be efficient:

“mechanical application of fixed, detailed rules or rigid deductions from fixed conceptions makes

for certainty and predictability in industrial and commercial undertakings of economically

organized society over long periods of time.”63

That said, why is looking at the work of Pound an interesting exercise in a thesis on the scientific

nature of law? Gardner explains well that with the rise of modern science “there came to exist

among jurists an apparent unanimity of belief in the possibility of applying "the scientific method"

61 Supra 59 at 230 62 Jerome N. Frank, "Legal Thinking in Three Dimensions" (1949) Yale Faculty Scholarship Series 4094 20. 63 James A (I) Gardner, "The Sociological Jurisprudence of Roscoe Pound (Part I)" (1961) 7:1 Vill L Rev 9 at 10

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to the study of law and legal philosophy.”64 Pound was one of the precursors of what became

known as sociological jurisprudence. When talking about science, in this particular case we’re

referring mainly to the processes of adjudication and the rendering of decisions in courts: “When

we speak of a "science of law," we are using the term in the second sense.65 It is in this sense that

Dean Pound uses the term in analyzing the science of law.”66

Pound reflected a lot on the scientific process of rendering court decisions.67 This is an argument

we will get back to in greater detail in Chapter Three. In addition to that, one of Pound’s

influences was the 18th century French philosopher, Montesquieu, according to whom “law is a

living growth and development interrelated with the physical and societal environment.”68 While

Pound strongly based his ideas on Montesquieu’s work, he lived at a different time and in a very

different context. Pound saw himself as a missionary for legal education and practice. Just like

Langdell before him, Pound believed in the need for progressive and common-sense reform in

the study of law. Pound and Langdell didn’t necessarily leave the same legacy. Pound’s focus was

more on the practice and purpose that law should serve rather than on the study. I see a lot of

his work building on the legacy of Langdell, and Pound embraced his scientific (botanical)

background, which enabled to have an interesting take on the notion of “legal science.” Pound,

often described as the father of legal realism, opposed the traditional meaning of “legal science”

that described law as an autonomous and self-serving concept. For Pound “legal science, in order

64 Ibid at 1. 65 Pound considers three type or what he calls senses of “law”. The first sense is law as a legal order the second is law as the authority of the courts along with administrative decisions and the third is law as a judicial process. 66 Linus J McManaman, "Social Engineering: The Legal Philosophy of Roscoe Pound" (1958) 33:1 St John's L Rev 13. 67 Ibid. McManaman describes Pound’s reasoning in the following way: “the body of authoritative grounds for decisions are contained within three elements: precepts, technique and ideals.” Within the element of precepts, we find a rule or a precept, principals, legal conception and standards. All of these put together constitutes a process that reproduces itself in every form of decision-making process in courts. 68 Supra 63 at 2.

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to meet the needs of a changing society, must give up its exclusiveness and work in closer

association with the other social sciences.”69 While, his might appear in strong contradiction with

what I’m trying to prove in my thesis, what’s interesting to take in Pound’s understanding of legal

science is not his philosophy on the purpose of law but his thought process.

Pound’s reasoning is that of a scientist. It’s based on a systematic process. For Pound “law is a

system of guides to judicial decisions, including precepts, technique, and ideals, found by reason,

tested by experience, promulgated by the authority of politically organized society and backed

by the force of that society.”70 While Pound, as a realist, is normally in contradiction with any

formalistic view of law and the analytical school of thought, in this conception of law that

summarizes Pound’s position very accurately, we read the work of Kelsen, Austin, and Hart.

Pound might be a realist who sees the law as part of a holistic social construct, but he is, before

anything, a scientist. We see this clearly in his seven71 practical objectives of sociological

jurisprudence72 and his characterization of law in Interpretations of Legal History as more than a

body of rules but “knowledge and experience with which the juristic process is carried on. [Law]

not only includes rules, principles, concepts, and standards but also doctrines and modes of

professional thought, skill, and art.”73 In his book New Paths Of The Law, Roscoe Pound also

describes law as “experience developed by reason and reason tested by experience.” This takes

us back to Leibniz’ geometric reasoning of law, where the purpose is to come up with results

from experience (previous truths/results) to find a solution.

69 Supra 63 at 11. 70 Supra 63 at 11. 71 Roscoe Pound, "Call for a Realist Jurisprudence, The " (1931) 44:5 Harv L Rev 710 at 711. 72 Supra 66 73 Ibid

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Pound embodies realism without rejecting the study of law he was taught by Langdell. In The Call

for a Realist Jurisprudence,74 Pound states: “a science of law must be something more than a

descriptive inventory. There must be selection and ordering of the materials so as to make them

intelligible and useful. After the actualities of the legal order have been observed and recorded,

it remains to do something with them.”75 Pound acknowledges that there is such a thing as an

objective, descriptive understanding of law, he just takes it a step further by trying to understand

the practical consequences of law. Pound’s philosophy is one I still find ambiguous. When he

talks about the science of law or what he refers to as “jurisprudence,” he considers three

elements or what he calls “senses”:76 the first being “the legal order,”77 the second78 described

as “administration of justice”79 and a third element he refers to as “law” that he characterizes as

a “judicial process,” a reference he takes from Justice Benjamin N. Cardozo.80 We will focus on

the notion of “judicial process” in greater detail throughout this thesis. It puts us back in the

realm of systemization that was discussed earlier in this Chapter. Looking at the third element,

Pound describes law as being “more than a body of rules […] knowledge and experience.”81 As

Stephen B. Presser, Professor of Law at Northwestern University says in his Forward of The Ideal

74 Roscoe Pound, “The Call for a Realist Jurisprudence” (1931) 44:5 Harv L Rev 697 at 711 75 Ibid at 697. 76 Supra 63 at 9 77 Roscoe Pound, Justice According to Law, (New Haven: Yale University Press, 1951) at 48 Pound states that “the legal order relates to "the regime of adjusting relations and ordering conduct by the systematic and orderly application of the force of a politically organized society” 78 Supra 74 79 Ervin H. Pollack, “Reviewed Work: Justice According to Law by Roscoe Pound” 43:3 The Journal of Criminal Law, Criminology, and Police Science (1952) 363 at 366. Pollack descries the second sense as the meaning of law “which the lawyer generally gives to the term "law." It, in this sense, comprises precepts, technique and ideals.” 80 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) 81 Supra 71

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Element in Law, “there was a tension in Pound’s reformist jurisprudence, because along with his

fervor for modernizing the law, Pound had a healthy respect for what he called the “taught legal

tradition,”82 which is what Pound identified as constant methodologies and principles of the

common law that constitute the bedrock of the legal decision making process and testifies to the

scientific and immovable basis of legal reasoning.

Hans Kelsen: We might be going in the wrong direction. You’re getting way ahead of yourselves.

You first need to look at the law as a concept. If we do not look at the essence of what law is first

then everything you’re saying about legal reasoning, legal purpose, certainty and predictability is

worthless.

Let’s press pause on the dialogue and focus a bit on Kelsen’s perspective. Indeed, among all the

scholars mentioned, my work builds mostly on Kelsen’s ambition of showing that law is a science.

In the first pages of The Pure Theory of Law, Kelsen candidly expresses his intention of showing

us what law is. I wouldn’t be able to put it more eloquently than Lars Vinx: “the primary aim of

the pure theory of law is to raise jurisprudence to the level of an independent science, a science

characterized by the hallmarks of objectivity and exactitude.”83 In the first two pages of his book

Kelsen makes a big statement that represents, to some extent, the foundation of my argument.

He claims that the purpose of his book is to describe the “object” of law. in other words, to

82 Roscoe Pound, The Ideal Element in Law ed. Stephen Presser (Indianapolis: Liberty Fund, 2002) at 6 83 Lars Vinx, “The Pure Theory of Law—Science or Political Theory?” in Hans Kelsen's Pure Theory of Law: legality and legitimacy (Oxford: Oxford University Press, 2007) at 29

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“answer the questions what and how the law is and not how it ought to be.”84 Kelsen insists on

the idea that he is studying the “science of law” and not “legal politics.” This important distinction

acts as the foundation to my argument on the distinction that is to be made between law as a

science and Law as a policy. This argument will be dealt with in greater detail in Chapters Two

and Three.

Kelsen throws away all other attempts to define or understand law. He claims to want to “free

the science of law from lien elements”85 For him, only the pure theory can reveal law’s true

nature as the object of an independent science. Kelsen argues that law needs to be identified in

his way because it’s the only way for law to be seen as science.86 Vinx refers to the preface of the

first translated edition of the Reine Rechtslehre87 that reads “the primary aim of the pure theory

of law is to raise jurisprudence to the level of an independent science, a science characterized by

the hallmarks of objectivity and exactitude.”88

How does Kelsen’s theory help us shed light on the scientific nature of law? Kelsen tells us that

law constitutes a series of norms, what he calls “ought to.” For Kelsen, law is a norm-based

system.

Building on Hume’s philosophy, Kelsen insists that one must not ignore the ontological gap that

exists between the “what is” (Sein) and “what ought to be” (Sollen). Due to that gap, an “is”

84Hans Kelsen, Pure Theory of Law (Clark NJ: The Lawbook Exchange Ltd, 2014) at 1

This is a reprint and translation of the book’s second edition, translated by Max Knight. The first edition was published in German in 1934. 85 Ibid 86 Many have argued this position to be fallacious. For Joseph Raz if we need to adapt our understanding of law for it to be validly seen as a science, this contradicts the basic notion of what science is. 87 Hans Kelsen, Introduction to the Problems of Legal Theory (Oxford: Clarendon Press, 1997). A Translation of the First Edition of Reine Rechtslehre or Pure Theory of Law, translated and edited by Bonnie Litschewski-Paulson and Stanley L Paulson (Oxford, 1992) 88 Supra 83

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cannot determine an “ought to be.” Law being a series of “ought to be,” therefore law cannot be

determined by the observations of the world around us (i.e., “is”). Only an “ought to be” can

determine another “ought to be.” Only law can determine and give validity to law. No external

factor can give validity to law. Law is pure in that sense.

Kelsen, rids the process of legal norm creation from any non-legal element whether it be history,

sociology, psychology, ethics, morality and or any element that questions the effectiveness of

law. While external elements are definitely used to interpret the law, they do not give it validity.

A legal norm is valid and exists because it is derived from a superior norm that gives the possibility

to exist. While human activity (i.e., “is”) initiates the creation of norms, only another norm (i.e.,

“ought to be”) can in fact create and give validity to a norm.

I am not interested in validating or discrediting Kelsen’s approach. What I’m interested in, is

extracting certain elements from Kelsen’ theory that reaffirm the scientific nature of law as I’ve

described in the first Chapter of this thesis. I first want to highlight Kelsen’s observation of a

normative understanding of law. If law is allegedly a science, it is independent from natural

sciences by virtue of its normativity. This means that law can be a science despite its subjective

nature (i.e. “ought to be”). Kelsen’s approach to science, just like mine, does not reduce itself to

objective empiricisms. For Kelsen the scientific characteristic of law is embodied in the form and

structure that law takes. While he never claims to be a universalist, Kelsen does suggest that “all

legal systems necessarily share certain structural properties that can be outlined in a universal

jurisprudential conceptual framework.”89 Law is a science based on the observation that it

89 Ibid at 31

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constitutes a “pure” system that is syllogistically and logically constructed, despite the

subjectivity of the norms that constitute the system and the external factor that influence the

norms outside the system. Regardless, the system itself is pure and scientific. This modular

representation for more clarity (Figure 3).

Figure 3: Kelsen’s “pure” system, a testament to the scientificity of law

For Kelsen all legal systems, or “systems of norms” as he calls them, have a hierarchical structure.

Kelsen differentiates between a legal system and a moral system. I’m interested in looking at the

legal system in which there is a basic norm that supersedes all other norms. This norm, regardless

of the moral value it holds, guides all inferior norms that need to be in accordance with it. While

the basic norm (or Grundnorm) does not impose substantive obligations on “inferior norms” it

acts as “a blanket authorization of the legal system’s fundamental legislative procedures.”90 This

90 Ibid at 40

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hierarchical representation of the legal system is commonly referred to as Kelsen’s Pyramid of

Norms.91 While we could debate whether Kelsen’s theory is complete, I am mainly interested in

considering whether Kelsen’s rendering of the law as a system of norms testifies once again to

the scientific nature of law.

To be more specific on where I stand with respect to Kelsen’s theory, let’s take a closer look at

his argument on the scientificity of law. There are two parts to Kelsen’s legal science. Professor

Jan-Reinard Sieckmann lays them out clearly in Chapter 14 of the book Kelsenian Legal Science

and the Nature of Law. The first, is that “legal science is possible only with regard to positive law,

that is, law that has empirical existence, and, furthermore, that one need not ask for a

justification of positive law […] [Kelsen] not concerned with the justification of law.” The second

part it that “legal science is possible as an autonomous discipline, distinct from morality and

sociology and, moreover, free from alien elements of other disciplines.” This is Kelsen’s theory of

norms, discussed in the paragraphs above.

I am fully aligned with Kelsen’s definition on the scientificity of law. I would however go even

further (as presented in Figure 3) by mentioning that the structure used by Kelsen to describe

the law’s “autonomous nature” and it’s “empirical existence” constitutes a system that functions

using logic (i.e. Kelsen’s explanation on what makes a norm valid). On page 260 of the same

book, Sieckmann says that Kelsen does not go as far as to say that “legal science is restricted to

empirical and analytical investigation but must not engage in normative issues. Legal sociology

91 Kelsen’s Pyramid has five layers and is structured as follows: The Constitution is at the top of the pyramid, followed my international treaties, national law, decrees and administrative acts at the bottom of the pyramid

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and legal logic would be the true forms of legal science.” Sieckmann is right in his observation. I

would have taken that step. Because by stating that “legal science is restricted to empirical and

analytical investigations” it creates the opportunity to distinguish between law as a science

based on logic (which is what I would associated Kelsen’s legal science to) and Law as a policy

that does engage in normative issues (this distinction will be dealt with in greater detail in the

last Chapter of this thesis). It’s on this last point where I respectfully suggest that Kelsen’s theory

is incomplete. I however still strongly agree with his argument on what constitutes the

scientificity of law.

H.L.A Hart: Kelsen makes a point about the legal system, but I don’t think he goes far enough.

Hans, your system is vague and too reductionist.

At no point in the Concept of Law do we see Hart alluding to law being a science. Yet, just like

Kelsen, Hart is on a mission to giving clarity to what law is. Hart also embraces the systematic

understanding of law. He sees the law as a system of rules with main types, i.e. primary and

secondary rules. Hart embarks on a conceptual exercise. The methodology he uses is one I

strongly identify with. Just like the mission I have given myself, Hart is trying to understand what

law is without actually defining law but rather explaining what law is. Hart is clear about the idea

that thinkers who have attempted to define law are not necessarily wrong in their definitions.

They are wrong in thinking that they can understand law through a simple definition.

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While Hart is indeed trying to answer the question ‘what is law’, he clearly lays out that there is

no definition that is able to combine all the elements to determine what law is.92 The technique

of “definition” has to be put aside. He chooses to explain what law is by uncovering a concept.

Hart introduces us to the “open texture of law.” With his notion of open texture, Hart attempts

to give structure and form to his system of law. He offers us a structure to understand what law

is. While he insists that the concept of open texture is what makes the law too complicated to

assert as scientific, what he ignores is that the mere fact of describing the law through a system

makes the law systematic, which is a first premise for it to be scientific, as per the definition

outlined in Chapter One . Hart’s position is understandable. He explains the open texture of law

through the notion of rules. Rules that shed light on what he refers to as the “Core of Certainty”

and the “Penumbra” where legal uncertainty lies. Hart tries to draw from both formalists and

realists, while disagreeing with both schools of thought. Hart insists that uncertainty is an

inherent part of what law is but at the same time uncertainty does not mean having judges

embark on biased interpretations. Hart’s system of law is structured around language or

communication. We have one system based on rules that are communicated either by examples

(precedents) or by general standards of behavior (legislation).93

Many would argue that Hart is not advocating for a scientific understanding of law. Hart himself

criticizes formalists and conceptualists whose approach would be to get rid of any notion of

92 92 H.L.A Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at Chapter 5 Section 3 where Hart refers to the “Elements of Law” in reference to what constitutes a legal system (union or primary and secondary rules) 93 Ibid at Chapter 3, Section2

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uncertainty in law and thus reduce the area of penumbra either by (a) arbitrarily coming up with

definitions based on common sense, (b) by tracing back the meaning of a certain legal concept

through history until we find the adequate definition or (c) simply referring to the source

(legislature) to help clarify the uncertainty. His embrace of the ‘uncertainty of law’ could make

us think that Hart, just like Frank or others, is totally opposed to the idea of the law as a science.

I would probably be amongst the few to argue that Hart’s description of law as a system is purely

a scientific exercise.

Oliver Wendell Holmes: Well, no need for me to say much. I think we all know where I stand on

this issue. You’re all very preoccupied either with the practice or purpose of law. Allow me to

take you back to the address I delivered before the New York State Bar Association on 17 January

1899 where I said, “I do not consider the student of the history of legal doctrine bound to have a

practical end in view.”94 Indeed, what I would call the science of law is the exercise that is

conducted in studying law “as a great anthropological document” or as an “exercise in the

morphology and transformation of human ideas.”95 Basically, this is about studying law for the

sake of intellectual stimulation; studying law for the knowledge it has to offer society. This is what

makes law a science. As I said I my speech, “I think that science, like art, may be pursued for the

pleasure of the pursuit and of its fruits, as an end in itself.”96

94 Oliver Wendell Holmes, "Law in Science and Science in Law" (1898-1899) 12:7 Harv L Rev 444. 95 Ibid 96 Ibid

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What is interesting about Holmes’ position is that what he characterizes as the scientific nature

of law is not necessarily the purpose it serves of reaching legal certainty, the methodology used

to teach and then practice law or even its inner construct and theoretical structure. What makes

the law a science is this drive and interest we have in studying and understanding the role it plays

in our society and human relations. As the famous Dutch law professor Herman Dooyeweerd

would say, science is an activity leading to knowledge,97 which perhaps another argument in favor

of the scientificity of law as a system of knowledge.

The question on the nature of law seems to have preoccupied a number of jurists throughout

history. Scholars have offered different perspectives on what law is. Many of these scholars, as

seen in this section and in the sections to come, have advocated or at least alluded to the

scientific nature of law. what seems to come up regularly is this idea of systemization:

systematized reasoning, system of rules, system of norms, system of knowledge. Does

systemization testify to science nature of law? Is this argument enough to assert law as a science?

d. Is law a science?

It’s not an easy question, so don’t expect an easy answer. Law can be scientific in many ways.

Regardless of the prism we look at it from, we always seem to see the scientific nature or

97 M C Roos, "Is Law Science" (2014) 17:4 Potchefstroom Electronic LJ 1411.

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reasoning of law emerge. As demonstrated in the governing definition of science for this thesis,

the science of law requires us to look at the law as a holistic concept. Law is first and foremost a

science seeing how it has been the subject of research, philosophical reflection and questioning

for ages, as described by Holmes in the previous section. When we look at the work of our

predecessors, legal scholars from all schools of thought have spent time trying to understand

either law’s form and structure, its purpose and objective or simply its worthiness as a discipline.

This simple curiosity about law and our eagerness to study the law, as a theory, but also as an

element of society is the strongest testament we can give to its scientific nature. As Karl Popper98

would say: “science is the activity of problem-solving with a critical attitude.”99 Popper

elaborated a lot more on his philosophy of science to which he gave a number of attributes. While

I’m not necessarily associating my definition of science to Popper’s philosophy, I would just like

to highlight that Popper’s reasoning is rooted in Kant’s philosophy of rationality and logic. My

work is also rooted in that philosophy. Part of Popper’s philosophy, as it is discussed in his book

The Myth of the Framework: In Defence of Science and Rationality, is to consider science as a

problem-solving activity through experiments using logic. He seems to have a systematic

approach to science. This approach is in keeping with the operational definition of science

adopted for this thesis and by the UK Science Council100. The study and the practice of law are all

about finding answers. Pound and Holmes tell us that law has a social end-goal to it, it’s part of a

social system. Law even constitutes a system of norms as Hart would say or is its own system if

we listen to Kelsen. Through law, jurists are attempting to find answers. We are also attempting

98 20th century British philosopher. He’s known as one of the most renowned philosophers of science. 99 Ibid at 1402 100 Supra 12

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to find the truth and ensure justice, which would be the role of a judge; to give advice and help

a client prove his or her truth, which would be the role of a lawyer; to make legal knowledge

accessible, easy to use and grasp, which is the mandate given to legal publishers; to educate and

shape the minds of future legal advocates, a mission professors of law are tasked with; and of

course to challenge the realm of law, constantly offering reinventions to its theory. Thinking of

and questioning law in light of all that was previously listed, it is clear that the unwavering task

given to legal scholars is of finding the truth in what law is.

So indeed, if we follow Karl Popper’s definition of science, law is a science. To add precision to

my definition we could say that the scientific nature of law is manifested by the systematic nature

of law that can be described as a problem-solving phenomenon with the purpose of increasing

our knowledge of something:

scientific nature of law = systematic representation of (i) knowledge building + (ii) problem

solving endeavor.

This equation has been addressed in this Chapter; in particular I discussed the quest for

knowledge in law and the systematic nature of law in the first part of this Chapter. The problem-

solving aspect of the equation will be discussed at greater length in the next Chapters.

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Below is a first modular expression of the law’s scientific reasoning, emphasizing the elements

discussed in this first Chapter.

e. Visual representation

Figure 4: law, a scientific phenomenon

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CHAPTER 2 - THE SCIENTIFIC PRACTICES & PROCESSES OF LAW: A DETERMINISTIC

EXERCISE

This second Chapter will look at the scientificity of law, which means that we will uncover all the

characteristics that make law a science, as defined and presented in the first Chapter. The first

Chapter focused on defining science but also on considering law as a theoretical concept and

observing the nature of its scientific reasoning. This second Chapter will now take the analysis to

the next level, departing from concepts and theories to analyze practical examples, ranging from

legal education and its scientifically driven methodologies, to more utilitarian examples such as

legal technology and legal publishing. Keeping in mind the philosophy discussed in the previous

Chapter when reading this section of my thesis, I will attempt to describe the law as a system to

which scientific attributes and methodologies are associated. I will conclude this section by

opening the door to a discussion on the scientific practice of law and conclude that if law is a

science, then lawyers must be scientists.

a. The scientific teaching of law

Is law taught like a science? What does it mean to teach scientifically? Is that even something

that exists? According to the National Academies of Sciences, Engineering, and Medicine, there

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are “several methods of teaching science.”101 A few key methods stand out: lectures,

collaborative learning, discussions, demonstrations, and getting students involved in their own

learning. When teaching biology and genetics, one professor says: “[students] get the chance to

test their understanding by making predictions and doing trials - exactly what one hopes for in

active scientific learning.102” Another professor talks about learning by doing: “experimentation

underlies all scientific knowledge and understanding.”103

How can we relate this to legal education? Is law taught scientifically? Christopher Langdell tells

us that the law can only be taught scientifically. As discussed in the previous Chapter, Langdell

was a champion of scientific reasoning in the teaching of law, through a methodology that a

majority of North American jurists have grown to love: the Case Method.104 I will be spending

some time explaining in greater detail what the Case Method is, but I will not be taking a position

on whether it’s a good or bad method. I will be using it as an example to illustrate the scientificity

of legal reasoning. Criticizing the Case Method is an exercise that many before me have

undertaken.105 What I’m interested in showing is that the Case Method is a form of scientific

101 National Research Council, “How Teachers Teach: Specific Methods” in Science Teaching Reconsidered: A Handbook (Washington DC: The National Academies Press, 1997) at 9 102 Ibid at 13 103 Ibid at 16 104 As described by Harvard Law School; the Case Method is a pedagogical method of legal education that was invented by Dean Christopher Columbus Langdell in the late 19th century as “a way to systematize and simplify legal education by focusing on previous case law that furthered principles or doctrines.” <https://casestudies.law.harvard.edu/the-case-study-teaching-method> 105 A number of scholars and institutions have criticized the Case Method. In his article titled “The Continuing Vitality of the Case Method in the Twenty-First Century,” BYU Educ. & L.J. at 307. David Garner mentions at 322 the American Bar Association’s Report of Committee on Legal Education - ABA Proceeding that highlights the danger of the Case Method in “presenting the law in too disconnected, isolated and detached fragments, rather than in one continuous and steady flow.” He also mentions the famous Redlich and Reed reports at 322 that flag a number of concerns regarding the Case Method. In the 1900’s both Joseph Redlich and Alfred Reed were mandated by the ABA Committee on Legal Education do draft a report on the cotemporary methods of teaching law and their effectiveness in shaping firtree legal professionals. Both these reports, but mainly Reed’s 1921 work titled Training for the Public Profession of the Law are regarded in the words of Garner as “the

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learning. Langdell conceived this method while influenced by the idea that law is a science. In

Langdell’s mind, regardless of how we look at it, we reach the same conclusion: law is taught

scientifically, therefore law is a science; or law is a science, therefore it is taught scientifically.

The argument on the scientificity of law that will be developed in this Chapter will give more

detail on what we mean by “science” in this thesis and will build on the numerous theoretical

arguments and examples that were presented in the first Chapter on my definition of science and

law as a scientific phenomenon. This Chapter will take a step back from the theoretical

approaches to look more into the practices and processes of law as science.

I believe that legal education is a good place to start. In his 1898 article on the Case Method,106

prominent lawyer and US Congressman Paul Howland says it best:

“The case system or method of instruction recognizes the fact that the present status of

the law is a growth and takes the student back to the earliest authorities and decisions,

searching for the original application of elementary principles and from that as a starting

point follows the course and development of that principle in all its stages down to the

present time. This is the scientific method.”107

foundation of modern criticism of the case method.” Reed’s report insists not only necessarily the flaws of the Method but also on the capacity of law faculties in using it. To quote Reed: “I believe that while, in the hands of a genuine scholar, skilled in the Socratic method, the case method is indubitably the best, in the hands of a mediocre man it is the very worst of all possible modes of instruct.” 106 Paul Howland, "The Case Method" (1898) 4:2 Western Reserve LJ 29. 107 Ibid at 31

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I’ve purposely quoted the entire paragraph, because it’s important and highlights perfectly the

sound scientific reasoning behind the Case Method. Leaning on Howland’s words of wisdom and

having experienced the merits and flaws of the Case Method, I see this method of scientific

learning as possessing three interdependent qualities. The first quality of the Case Method is

the manifestation of scientific legal reasoning where the student gets to experience the essence

of legal thinking. The second quality is more analytical. The student engages directly with the

case and is plunged into an application of a scientific legal methodology. Finally, the third

quality, is when the student, after navigating through every single aspect of legal reasoning in

the case reaches an objective assessment of the law and is able to point to that law as its own

body of knowledge.

Indeed, the Case Method helps us uncover the scientific reasoning behind law. Let’s break it

down. In its traditional implementation in US law schools, the Case Method took the form of a

systematized and structured methodology.108 A professor assigns his/her students a case. This

case can be accompanied by references to statutes, casebooks, jurisprudence, or not. Students

must prepare to discuss the case in fact and in law during class. Once in class, a student is called

on, and starts the five-step very systematic exercise through which he discovers the scientific

reasoning behind law. The methodology is unique, consistent and replicable to all cases, just like

a scientific experiment. The student first states the facts of that particular case. The student then

108 Ibid 29 at 30

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goes on to state the proposition of law being evoked. The student must then agree or disagree

with the principles of law and legal solutions expressed in the case decision and justify his/her

position. The professor rebuts with a number of follow up questions to the student to get him/her

to dig deeper in their analysis. The professor then opens the discussion to the entire class.

Students engage with each other around the facts and the law of the case. The professor is an

active moderator who is tasked with framing the discussion and feeding the class more facts,

precedents or legal principles to try and consider the case from all possible angles.

Why is this interesting and how is this method a manifestation of law’s scientific reasoning? Let’s

go back to the first quote I borrowed from Howland. The Case Method takes us through the

process of legal reasoning from the preliminary facts to the uncovering or creation of a legal

principle. This process is purely scientific. Howland rightfully draws parallels to chemistry,

geometry and arithmetic.109 Just like any scientific discipline, law is not a set of rules you can

learn or memorize by heart and then magically understand and apply to all situations. Law is the

result of a very predetermined thought process that leads us to understanding or sometimes

even creating a rule (i.e., court decisions). That said, it seems like law, by nature of the reasoning

and processes adopted by those studying it, has a very scientific approach.

109 Ibid at 31 at 32

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Before we move on to our second quality110 that deals with the Case Method as the elaboration

and application of a scientific legal methodology let us go back to our scientific teaching methods.

We mentioned collaborative learning, discussions, demonstrations and getting students involved

in their own learning. These scientific methods of teaching might appear to be useful to other

disciplines and not exclusively to scientific disciplines. Such a conclusion does not change the fact

that the Case Method has embraced these scientific teaching methods and stems from Langdell’s

vision of teaching the law by borrowing academic approaches hard sciences. Arguing the

scientificity of the Case Method put us very much in the green, not only in showing that legal

reasoning as such is scientific but also that the Case Method, as an academic exercise and

teaching tool, is very much in line with the methods used in teaching hard sciences. Another

example we could look at to further confirm our hypothesis/conclusion, is drawing a parallel with

the “five-step problem-solving approach, called the scientific method111” that the Khan Academy

has come up with. Salman Khan, an American educator and mathematician who founded the

Khan Academy. He has strived to reinvent the study of science by developing new pedagogical

problem-solving methodologies that reflect the nature of what science is. This takes us back to

the quote from Karl Popper;112 who also described science as the activity of problem-solving. If

law is a science, then it is also a problem-solving activity. The Case Method, as a pedagogical tool,

110 As discussed above, I’ve identified three qualities to the Case Method, the first quality being the manifestation of scientific legal reasoning, the second quality is the student engaging directly with the case getting I touch with an application of a scientific legal methodology and the third quality reaches an objective assessment of the law point to that law as its own body of knowledge based on the reasoning that was used to analyze the case. 111 Khan Academy, “The scientific method”(2017), online: Khan Academy <https://www.khanacademy.org/science/high-school-biology/hs-biology-foundations/hs-biology-and-the-scientific-method/a/the-science-of-biology> 112 Supra 98

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is an excellent example validating the scientific nature of law. Let’s break-down both

methodologies in the following table and then compare.

Five-step Khan Academy problem-solving

scientific method

Five-step Case Method

Make an observation.

State the facts of that particular case

Ask a question.

Examine the facts in relations to the

proposition of law involved

Form a hypothesis, or testable

explanation.

Form a substantive hypothesis based the

principles of law and legal solutions

expressed in the case decision

Make a prediction based on the

hypothesis.

Present the ruling of the judge based on

the substantive opinion and show our

understanding of the case

Test the prediction.

Test the ruling of the judge with regard to

other cases, examples….

These methodologies have more in common than one might originally apprehend. We observe

that both exercises begin with objective, factual observation with the purpose of finding an

answer. It’s the idea of “problem solving,” that we will discuss in greater detail later in this

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Chapter. Once a factual observation has been made, we try to make sense of that observation by

asking questions and looking at what constitutes the facts, while trying to make a link with what

we already know about similar situations (in law that would mean looking at applicable laws and

precedents). The next two steps are pre-conclusions. At this point we start laying the groundwork

through a hypothesis and associate the potential results (in law, the ruling of the judge) with that

(legally founded) hypothesis. We then conclude and verify the prediction (ruling of the judge) by

looking at other examples of a comparable situation (in law, a similar case).

The second quality I raised was the application of a scientific legal methodology. When we look

at the reality of court procedures and judgments, there’s no doubt that law is not just a deductive

process and often judges must use their discretion when ruling on a matter. However, from the

minute proceedings start to the moment a judgment is rendered, a very scientific process

unfolds. The Case Method helps us reveal this scientific process. In his article titled Living with

the Case Method,113 Weaver argues the merits of the Case Method: “Learning Law in a System of

Precedent,”114 “Understanding the Legal Process.”115 Two words we should keep in mind,

“system” and “process.” Weaver’s analysis takes us back to the argument I made earlier in this

Chapter that law is a science and therefore it should be taught scientifically.

113 Russell L. Weaver, “Langdell's Legacy: Living with the Case Method” (1991) 36 Vill. L. Rev. 114 Ibid at 553 115 Ibid

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I would conclude, from Weaver’s argument, that the scientificity of law is reflected in the way we

make law. I would argue that “law is a systematized process.” Indeed, Weaver explains that

looking at the ruling of a judge on a case is not enough to understand the legal reasoning of a

judge and the legal weight his/her ruling will have on setting a precedent. In other words, to

understand the law we need to look beyond the “one” rule that a judge announces in one specific

case and seek to understand law as a system of precedents: “a rule's significance can only be

ascertained by reference to how it is applied in subsequent cases.”116 Let’s keep this in mind

answer, ’ll get back to it towards the end of this Chapter. Weaver also references Langdell’s

famous position on the law being a science:

“Law, considered as a science, consists of certain principles or doctrines. To have such a

mastery of these as to be able to apply them with constant facility and certainty to the

ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to

acquire that mastery should be the business of every earnest student of law. Each of these

doctrines has arrived at its present state by slow degrees; in other words, it is a growth,

extending in many cases through centuries. This growth is to be traced in the main

through a series of cases…”117

116 Ibid 117 Supra 113 (528 at 529). C. C. Langdell, Selection of Cases on the Law of Contracts (Boston: Little, Brown, and Co., 1871) at vi

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Does this mean that the law is a science? No; it means that by using the Case Method, a method

that is itself very scientific, as seen above, we are enabling law students to become scientists,

masters in the science of law or as Langdell would put it “true lawyers.”

Let’s take it a step further. Not only can we use scientific methodologies to understand and study

the law, it seems like legal reasoning is itself a scientific process. In Paul Howland’s article on the

Case Method,118 he makes another very interesting argument on the application of the scientific

legal methodology.119 Howland states: “[the] ability to reason logically along legal lines is

absolutely essential [..] bring[ing] into play the logical faculty and teach[ing] him from legal

premises to draw legal conclusions. This is one of the greatest benefits of the case system, for it

almost compels the student to be a legal reasoner.”

There are two conclusions we can draw from this. The first is what Howland calls legal reasoning

– let’s keep this notion in mind for the end of this Chapter. For him, legal reasoning is based on

logic. Howland would therefore agree with my father that in the law, just like in math, there is

some form of axiomatic systemization. In other words, a series of postulates that when

assembled or read together create a chain of reasoning. The logical consequence of the axiomatic

system is what we would call a theory (or a rule if we want to relate this to law). Let’s imagine a

case where Mr. B sues Mr. A because Mr. A did not pay him.

118 Supra 106 119 This makes me think of what my father used to tell me: law is very cartesian, it’s just like mathematics. Bear in mind that my father was a lawyer not a mathematician…

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Our first assumption (axiom) would be that Mr. A owed Mr. B money. From that point we start

building our axiomatic system based on the facts that unfold logically from our first assumption.

Mr. A owed Mr. B money, because Mr. A promised he would pay Mr. B if he fixed Mr. A’s fence.

Mr. B fixed the fence but Mr. A refused to pay him because he did not like the way Mr. B fixed

the fence.

What does our axiomatic system look like?

Mr. A promised Mr. B ----- Mr. A did not fulfil his promise to Mr. B ----- Mr. B did not get his money

From this axiomatic system entirely based on logic will emerge a theory (rule): When you make

a promise to someone you must keep it.

The rule (outcome) that emerges is the result of a pure test of logic. While judges are given

discretion on interpretation, they are bound by the facts of the case. We look at the facts the way

they are and reach a conclusion that is based on logic and that the man on the Clapham

omnibus,120 or any other “reasonable man” would reach. At this stage we’ve created a rule that

serves as basis. The scientificity of legal reasoning is confirmed.121 The outcome of a case is the

120 From the English case McQuire v. Western Morning News (1903) used again by Lord Reed in Healthcare at Home Limited v. The Common Services Agency 121 We could get into the details of the example and imagine that although Mr. A promised Mr. B money, he did it I exchange for Mr. B painting his fence. Perhaps Mr. B did not paint the fence at the satisfaction, Mr. A could argue that Mr. B did not perform his side of the promise, so he is not entitled to the money. Mr. B could in return argue that there was a partial performance of the promise, so he should at least get a percentage of that money. A judge could rule in common law and decide whether the fence is considered painted or not and as a consequence Mr. would or would not get his money. The judge could also rule in equity that there was a partial performance of the promise. The bottom line is that regardless of the socio-

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result of a logical combination of facts (and rules) combined with a judge’s discretion. Logic is

what guides this reasoning, which means that judges use their logic to reach a decision:

Figure 5: legal reasoning is logic-based reasoning

This example strongly reinforces the idea of law as a science. The second conclusion to be drawn

from Howland is that the Case Method, as scientific methodology conceived to teach the law,

enables students - through its scientific process -to better grasp the axiomatic reasoning of law.

It seems to me that law is starting to sound like it’s a science, not only in its nature but also

through the structures and methodologies that have been created to explain its scientific

essence.

The third quality is that law is its own body of knowledge. There are so many different definitions

of science that reflect this quality of law. Some are very academic, while others are based on the

experience of renowned scientists. I’ve selected a few definitions, from different sources.

The selection of definitions is not random and is a representative sampling of my comprehensive

research across a number of sources. The scientists and researchers I quote are people, who like

political outcome of this decision - Mr. B gets his money or does not - the decision of the judge might vary but the reasoning that is relied upon to make the ruling does not vary. It always emanates from a logical process.

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me, have attempted to define the concept of science for their own work and research. This

diversity in definitions reinforces what this thesis has emphasized from the beginning; that while

there is no single definition of science or law, one governing theme is that in many definitions we

find elements of commonality between what is defined as science and the characteristics of law.

The governing definition of science I posited in Chapter One is refined in this section by the more

specific perspectives on science, as expressed by actual scientists and scientific institutions on

certain characteristics of science as a concept that can also be attributed to law.

The angle that is taken to describe what science is varies depending on the source, but some key

notions such as “knowledge,” “systematic” and “process” always seem to arise. To quote a few:

“science involves more than the gaining of knowledge. It is the systematic and organized inquiry

into the natural world and its phenomena;”122 “the systematic observation of natural events and

conditions in order to discover facts about them and to formulate laws and principles based on

these facts;123” “a primary aim of science is to collect facts (data). An ultimate purpose of science

is to discern the order that exists between and amongst the various facts.”124

In this third definition Gottlieb talks about discerning an order. This very interesting point is dealt

with in his lecture What is Science125 where claims that scientists determine the order of facts

122 Vanderbilt University, Department of History online: < http://www.playground.ltc.vanderbilt.edu/~zimmermc/def.htm> 123 Definition of Academic Press Dictionary of Science & Technology 124 Dr. Sheldon Gottlieb Professor of Biology, the Dean of the Graduate School, and Director of Research at the University of South Alabama in a lecture series at the University of South Alabama, “What is Science” online: http://www.theharbinger.org/articles/rel_sci/gottlieb.html> 125 Ibid

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“by progressing from fact to fact through a process called reason.”126 I highlight this because it

stresses the importance of science as a process and gives us insight on what we could call

scientific reasoning. Let’s keep this idea in mind, as it will be dealt with in greater detail in the

next Chapter where we will draw parallels between scientific reasoning and legal reasoning.

Another definition that opens the doors to two arguments, one on evidence and the other on

hypotheses and premises: “science consists simply of the formulation and testing of hypotheses

based on observational evidence.”127 This idea of hypotheses and premises will be dealt with in

the third Chapter.

A final definition I found interesting is from the University of California Museum of Paleontology,

Berkeley: “science is both a body of knowledge and a process […] science is also a process of

discovery that allows us to link isolated facts into coherent and comprehensive understandings

of the natural world.”128 An interesting definition, in which, I think, we could find the law. Two

elements of this definition are of note. The first is the idea of a defined body of knowledge of

law. This takes us back to Chapter One where we discussed law as a form of knowledge. Indeed,

Langdell used to say that law was a "science worthy of being taught at university.”129 The law

126 Ibid 127 Henry L. Batten and Robert H. Dott, Jr., Evolution of the Earth, 2nd ed (McGraw-Hill Book Company: New York, 1976) 128 UC Berkeley, “Understanding Science” online: University of California Museum of Paleontology, Berkeley < https://undsci.berkeley.edu/article/whatisscience_01> 129 Supra 122 at 530. See also the address by Dean Langdell, Harvard Law School Association (5 November 1886) in Steve Sheppar, The History of Legal Education in the United States: Commentaries And Primary Volume 1 (Clark NJ: The Lawbook Exchange Ltd, 2007) 514 at 516. In Chapter 34 of this book titled Teaching Law as a Science, we find the full transcript of Christopher Langdell’s’ 1886 speech where he argues that law is a science that needs to be taught at university : “If it [law] be a science, it will scarcely be

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constitutes such a dense body of knowledge that specific Schools and Faculties are entirely

dedicated to its study and practice. The law is such a unique, complex and peculiar body of

knowledge, that in many countries to access the study of law one needs to be well versed in other

disciplines in order to have the maturity to study the law. The law is so specific in the knowledge

it represents that it’s not enough to have grasped its theoretical aspects to practice it, jurists

must qualify to be part of a community of practitioners. Legal knowledge is so unique that in

most jurisdictions unless one receives a legal education, they cannot qualify to join the

community of lawyers, traditionally known as the law society.

The question that may arise is whether law is really its own body of knowledge or if jurists have

made it seem like law is special, so they secluded themselves from other disciplines. There is

truth in both these arguments. There are psychological elements, that will be discussed in the

next Chapter, which have created a “private club of lawyers.” At this stage I will not delve too

much into my claims around professionalization. The scientificity of legal practice will be

discussed in greater length in Chapter Three.

disputed that it is one of the greatest and most difficult of sciences, and that it needs all the light that the most enlightened seat of learning can throw upon it. Again, law can be learned and taught in a university by means of printed books. If, therefore, there are other and better means of teaching and learning law than printed books, or if printed books can only be used to the best advantage in connection with other means-for instance, the work of a lawyer's office, or attendance upon the proceedings of courts of justice-it must be confessed that such means cannot be provided by a university. But if printed books are the ultimate sources of all legal knowledge; if every student who would obtain any mastery of law as a science must resort to these ultimate sources; and if the only assistance which it is possible for the learner to receive is such as can be afforded by teachers who have travelled the same road before him-then a university, and a university alone, can furnish every possible facility for teaching and learning law.” See also: Charles Warren, History of the Harvard Law School and of early legal conditions in America, Volume 1 (New York: Lewis Publishing Company, 1908) 360 at 361. In Chapter XLI titled Elliot and Langdell, we can read: “He [Langdell] told me that law was a science […] law is not only a science, but one of the greatest and noblest of sciences, there is and can be no dispute […] a law school that does not profess and endeavor to teach law as a science has no reason to exist.”

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Going back to our argument earlier in this Chapter around “judge made law” or “case law,”130

one could see this as the creation of a legal knowledge by those qualified to practice that

knowledge. It reinforces the idea of law as its own discipline. In simpler terms, law is its own body

of knowledge since law is created by people who understand it (i.e., judges). Law can also be

seen as its own body of knowledge merely based on the idea that law generates, as discussed

above, a specific process and methodology, which is created and grasped by jurists for jurists.

Legislation, another form of law, will be discussed in Chapter Three is subject to the important

distinction that needs to be made between law as a discipline, which is what we’re referring to

here, and Law as policy, which is what legislation represents. As policy, legislation does not fall

squarely into my theoretical framework in this thesis. The distinction between law as a science

and Law as policy (legislation) was made earlier in this thesis but will be dealt with in greater

details in the third Chapter.

We could also echo the work of H.L.A Hart in this regard. Law is its own body of rules because it

can directly be identified as being “law.” As Hart would say in the Concept of Law, law, in its

nature, generates obligation: “where there is law, the human conduct non-optional or

obligatory.”131 For Hart an obligation is a rule, because a rule is implied by the obligation. Hart

describes law as the union of primary and secondary rules. Keep in mind that Hart clearly states

130 Referring back to Howland’s argument of law being a thought process that leads us to understanding or sometimes even creating (e.g., court decisions) a rule and not a set of rules you can learn or memorize by heart. 131 H.L.A Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at 82.

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the union of primary and secondary rule is a tool to analyze the concept of law; it’s not a

definition of law.132 Just like Kelsen, Hart looks at what makes law, law. He describes law as a

system where “rules of recognition” give validity, or what he calls “identification” to “rules of

obligation.”133 Just like Kelsen,134 Hart tells us that law is what creates law. I’m not going to

elaborate on these two types of rules Hart discusses or on whether or not the rule of recognition

can be compared to the Grundnorm, as some literature may suggest. The point I’m trying to

make is that Hart also seems to understand law as a standalone system: a unitary body of rules

and therefore its own body of knowledge.

The first part of this second Chapter laid out a number of arguments that were aimed at

presenting the scientific nature of law by presenting it as a stand-alone body of knowledge for

which scientific methods of teaching have been created (i.e., the Case Method). This first part

introduces us in depth to the idea of scientific legal reasoning. The second part of this Chapter

will take a step further by showing that we can uncover the scientificity of law by looking at a

number of processes that are based on this scientific nature of law.

132 H.L.A Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at 98 (chapter 5). 133 Ibid at 100 (chapter 5) 134 See Chapter 1 and our discussion around Kelsen’s Pure Theory of Law

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b. The law: a scientific process

Let’s now look a couple of more practical examples relating to the use the scientificity of legal

practices. We will first consider law and technology, legal publishing and methodologies around

legal writing.

The development of legal tech is a good example of how law can be presented algorithmically

(using arithmetical logic) and described systematically (in the form of a system) and therefore

understood scientifically (science, as defined in the first Chapter). For my discussion around legal

technology and analytics, I would like to frame the conversation by first, considering an article

published in Future Internet.135 This article, co-authored by a group of computer scientists, not

jurists, takes an interesting perspective on the debate we are having around the scientific nature

of law. When we talk about legal technology we often tend to focus solely on “how methods and

approaches from computer and information science can turn into new services or tools for legal

professions.”136 This does indeed represent a big part of what legal tech is all about. We think of

Katz from Michigan State University who talks about “computational legal studies.”137 The article

lists a couple of examples Katz discusses in his work such as “out of equilibrium models,”

135 Nicola Lettieri et al, “Ex Machina: Analytical platforms, Law and the Challenges of Computational Legal Science” (2018) 10:5 Future Internet Journal MDPI 136 Ibid at 7 137 Daniel Katz, “What is Computational Legal Studies?” (2011), online: <https://www.slideshare.net/Danielkatz/what-is-computational-legal-studies-presentation-university-of-houston-workshop-on-law-computation>

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“machine learning,” “social epidemiology,” “information theory,” “computational game theory”

and “information visualization,” all of which we could discuss more thoroughly if this were a

thesis on legal technology. But without wanting to get too technical, I find very appealing that

the authors seem to agree that “analytical platforms certainly represent an important part of the

future of the law and legal science.”138

This diagnosis coming from what some would call actual scientists states:

“[…] others, instead, focus on the impact that scientific and technological evolution could

or should have on the scope and methods of legal science and, in more general terms, on

the way in which the law is conceptualized, studied and designed in a similar way to how

it happened in other areas of science such as physics that has deeply revised itself, its own

vision of the world and its methods according to scientific and technological

developments.”

As expected, the article does not build on the argument around the scientific nature of law but

rather focuses on legal analytical platforms. The development of legal analytic platforms, such

as Lexis Advance or Westlaw reinforces my point of law as a science by elaborating the

mechanical and systemized qualities of the law. We can distinguish two types of platforms:

professional platforms and legal research platforms.

138 Supra 135 at 7

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The article mentions how all the sciences are moving towards the “Big Data era.” Let’s look at the

Lex Machina as an example. The Lexis Machina (owned by LexisNexis139) is a Legal Analytics®

solution “mining litigation data, revealing insights about judges, law firms, lawyers, parties, and

case subjects themselves, culled from millions of pages of litigation information.”140 The term

“Legal Analytics” is very relevant to our discussion around the logical and systematic structure

that law can have since “analytics” involves “the discovery and communication of meaningful

patterns in data.”141

With solutions like the Lex Machina, lawyers no longer need to rely only on their own experience,

knowledge of case precedents, and intuition to predict the outcome of a court decision or the

reasoning of a judge. This computerized solution stores, processes and summarizes the same and

an even greater amount of information, which gives lawyers “more accurate forecasts on how

events will play out in litigation.”142 Solutions that traditionally helped jurists find relevant

sources now also do the interpretative work for them.

Legal research platforms abide by the same logic but serve a slightly different purpose. Big Data

to which we add Network Analysis, Natural Language Processing and Artificial Intelligence

enables the creation of “Collaborative Platforms” such as Lexis Advance or Ravel Law. These

139 LexisNexis, online: < https://www.lexisnexis.com/en-us/about-us/about-us.page> 140 LexisNexis, “About Lex Machina™?”, online: < http://help.lexisnexis.com/tabula-rasa/newlexis/lexmachina_cpt-concept?lbu=US&locale=en_US&audience=all,res,shep,lpa,lps,med,pub,vsa> 141 Ibid 142 Supra 135 at 7

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platforms also known as “Knowledge Management Systems” help lawyers “browse legal and

legislative documents searching for relevant changes and evolutions in the law.”143 These

platforms give instant access to thousands of different content sources, consolidated statutes

and case decisions. This furthers our argument around the scientific nature of law because if legal

data can be processed in such a way that it can be recognized and analyzed through the use of

algorithms and Artificial Intelligence, then undoubtedly law has a scientific (or mechanical)

nature to it. The article gives us a step by step example by detailing the mechanical process of

the Lex Machina, described as a “web-based analytics service is used to uncover trends and

patterns in historical patent litigation to more accurately forecast costs and more effectively

evaluate various case strategies.”144

The Lex Machina is described in three tiers:145 what it does, how it does it and what the outcome

is. This legal tech solution uses a combination of human reviewers and a proprietary algorithm

that automatically parses and classifies the outcome for each case that the service extracts from

PACER (US Public Access to Court Electronic Records). After extracting, processing, and scrubbing

the data, the solution assembles and presents aggregated case data for a particular judge, party,

attorney, or law firm with analytics. The analytics allow users to quickly discern trends and

patterns in the data that may affect the cost or outcome of their case.

However, legal technology is not a stand-alone example of the scientificity of law. Before

technology ever came into play, legal publishing had already developed structured scientific

143 Ibid 144 Supra 135 at 8 145 Ibid

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methodologies applied to legal writing. LexisNexis, the leading global provider of legal and

regulatory information and analytics, wasn’t born in an era of technology. It’s only in the late

1950’s that the company started investing in what we call today legal tech, but their influence on

the scientific nature of law starts long before that.

I will highlight, through a couple of examples how the law, due to its scientific nature, has

enabled companies like LexisNexis to create and develop strict methodologies and editorial rules

which constitute today part of our scientific legal reasoning. A first good example is case citations

and law reports. Over 200 years ago, Henry Butterworth founded an organization in the UK,

known today as LexisNexis, through which he pioneered the publication and sale of legal books.

The story, which remains an anecdote for legal publishers, sets the framework that has guided

legal publishing ever since, on how to write, style, publish and cite legal documents. In the Anglo-

American legal tradition Law Reports or Reporters are the books that cases are published in: “A

case is said to be “published” when it appears in a reporter.146” When editing a case brief, editors

are guided by four elements that have been instilled in the minds of jurists for generations.147

This methodology is as follows. The case brief should include the facts of the case (name of the

case and its parties, what happened factually, procedurally, and the final judgment/ruling), the

issues dealt with in this case (what is in dispute), the holding or judgment (the applied rule of law)

and the rationale behind the decision that was made by the judge (reasons for the holding). This

146 LexisNexis Academic, “Case Citations” online (blog): LexisNexis <https://www.lexisnexis.com/communities/academic/w/wiki/91.case-citations.aspx> 147 How to Prepare for Law School, “How to write a case brief for law school brief” online (blog): LexisNexis <https://www.lexisnexis.com/en-us/lawschool/pre-law/how-to-brief-a-case.page>

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editorial methodology takes us back to our discussion on the Case Method and Weaver’s

systematic understanding of law. This editorial methodology adopted by publishers follows the

same systematic pattern and seems to embrace Howland’s “legal logic.” This example reinforces

the idea of law as a system to which scientific methodologies are applied.

Law has made it effortlessly possible for publishers to create these practices that can be

reproduced for any case, any court, in any year. It’s said that “science is knowledge gained

through repeated experiment or observation. To be convincing, a scientific paper needs to

provide evidence that the results are reproducible.”148 Does law fit the criteria? When we look at

the methodologies used to study and understand case decisions, we most certainly observe

patterns of repetition and replication. As in science, where scientific papers explain their

methodology and results sufficiently to allow for reproducibility, case reporters attempt to

isolate the facts issues and legal holdings sufficiently such that in similar factual circumstances

when similar issues arise a similar result would be reached by the application of a reported

holding of law. Legal publishing shows that the practice and the study of law are indeed an

exercise of repetition and replication.

148 David L Vaux et al, “Replicates and repeats—what is the difference and is it significant? A brief discussion of statistics and experimental design” (2012), online: EMBO Rep 13 291 at 296 < https://doi.org/10.1038/embor.2012.36>

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More examples to illustrate this argument would to look at any case book or legal methodology

book. In their book, Introduction to the Study of Law: Cases and Materials,149 published by

LexisNexis, the authors present the typical method of writing a case brief. If there is such a thing

as a ‘typical’ methodology it means it can be reproduced for any case at any time. Another

interesting example is L.H. LaRue’s book titled Guide to the Study of Law: An Introduction. ln his

book, LaRue has an entire chapter dedicated to the methodology that must be used when reading

a Law School Casebook.150 If we look at the Canadian Legal Research Writing Guide published on

CanLII.151 Section 12 of this Guide is dedicated to presenting the methodology on writing a Legal

Memorandum. One common criticism is that “[b]ecause each legal problem is distinct […] Do not

slavishly follow the sample memorandum and feel free to incorporate your own style where

appropriate.” Does this refute my entire argument? Absolutely not, because the Guide goes on

to say: “[a] legal memorandum is comprised of certain standard elements: i) heading, ii) succinct

identification of the legal issue(s); ii) short summary of your conclusion, iii) review of relevant

facts; iv) discussion of the law relevant to the legal issues, and application of that law to the facts;

v) ultimate conclusion that is responsive to the legal issues.”

Two key ideas can be extracted from this quote. The first, is the subjectivity of the case that is

going to be discussed in the Memorandum. Indeed, that “each legal problem is distinct,” what

we commonly translate into “every case is different” or “decisions are made on a case by case

149 Michael Makdisi and John Makdisi, Introduction to the Study of Law: Cases and Materials, 3rd ed (Newark, NJ: LexisNexis Matthew Bender, 2009) at 99. 150 L.H. LaRue, Guide to the Study of Law: An Introduction, 2nd ed (Danvers, Mass: Carolina Academic Press-LexisNexis, 2001) at Chapter 2 “Reading the Law School Casebook”. 151 Melanie Bueckert et al, “The Canadian Legal Research and Writing Guide” (2018), online: CanLIIDocs 161 at Section 12 on Preparing a Legal Memorandum <https://commentary.canlii.org/w/canlii/2018CanLIIDocs161#!fragment/zoupio-_Toc528758173/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zgFYAmADgHYOPAIx8AzAEoANMmylCEAIqJCuAJ7QA5BskQ4ubABsDAYSRpoAQmQ7CYXAiUr1Wm3YQBlPKQBC6gEoAogAyAQBqAIIAcsYBkqRgAEbQpOzi4kA>

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basis”. Every case has a different set of facts, so different legal arguments might be made and

because of that, the legal answer to the facts might be different. So indeed, no two memoranda

will be exactly the same.

However, we could all agree that every case has facts, that legal arguments need to be brought

before a court and judges do need to render a decision – regardless of the “legal problem” at

hand that specific methodology needs to be respected. Therefore, in every single legal

memorandum we will find, in whichever way they are tackled, the five elements that are describe

in Section 2 and that comprise a legal memorandum. The mere fact that there is a methodological

process (i.e., five elements), that is necessary to construct a valid Legal Memorandum, and that

without this process the document is not considered a Legal Memorandum because it does not

answer all the questions, takes us back to the Khan Academy’s problem-solving scientific method

and shows once again that law has a scientific element to it.

An argument that arises is whether “scientific” is something beyond formulaic or systematized.

If a Legal Memorandum does not follow the prescribed methodology, it will not be legitimized as

a Legal Memorandum; but does this make it scientific or just formulaic? I believe that the

scientific argument does not lie in the fact of having a methodology but in the structure of the

methodology itself. Because law is a problem-solving exercise, law has a scientific attribute to it

as per my definition of science and because a Legal Memorandum is a literary expression of law

than the methodology developed to legitimize it is itself a scientific methodology.

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Although we can come to appreciate certain methodological similarities between the hard

sciences and law is this enough to justify the scientific nature of law? Let’s take another step

back. Let’s go back to the beginning of this Chapter where we set the framework of what science

is and how law fits in that definition. Discussing the impact of technology earlier on in the Chapter

should help us conclude our argument. What is often said and repeated in Palmerini’s chapter

on RoboLaw152 is that there appears to be a certain dichotomy that traditionally comes up when

we try to define law as a science. Science is seen as a “fact-finding domain” and law as “the realm

of the ought-to-be.” Palmerini challenges this position in light of her research on the interplay

between law and technology and states:

“the plain assumption, that the fact-finding dimension is independent from the normative

dimension and, logically and chronologically, occurs before the making of normative

judgments, has been deconstructed; likewise, the idea that technology is neutral. A clear-

cut edge between the two fields of action has faded away and the mutual

acknowledgment of each one’s own boundaries has been replaced by a “co-production”

regime, where science and policy are reciprocally interrelated.153”

Her argument reinforces the idea discussed in the Future Internet article on how law and

technology combined create a certain number of legal-tech tools and solutions, thus the idea of

“co-production.” This still does not answer our question. We understand that law and science

152 Erica Palmerini and Elettra Stradella, Law and Technology: The Challenge of Regulating Technological Development, (Pisa: Pisa university press, 2013) 153 Ibid at 13

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are compatible, but is law a science? The reason why Palmerini’s argument stops at

‘compatibility’ is because of the definition she gives the word law. For those who might have

forgotten, I started this thesis with the question What is law? and here it is coming back to haunt

us. Palmerini attributes a subjective nature to law as the “realm of the ought to be” so from the

get-go she doesn’t give us a chance to even bring arguments forward on the scientificity of law.

I would like to push beyond Palmerini’s argument and look at law through the eyes of a logician

like John Stuart Mill, the 19th century philosopher who contributed immensely to fine-tuning the

scientific methodology and the creation of a “positivist science of society.”154 The positivist

methodology’s bedrock principle is the logic of justification. Science can be defined as a deductive

system based on axioms, which is why positivists understand science as a body of knowledge to

be determined in terms of logical derivability and consistency.155 For positivists, law is a science

due to the fact that legal claims are justified because they are derived from higher legal claims.

This takes us back to Kelsen’s hierarchy of norms or simply the idea of court precedents and

hierarchy of courts. Keekook Lee puts it very eloquently: “If the study of law is to be as scientific

and systematic an enterprise […] then it must conform to the structure of scientificity endorsed

by the positivist methodology. To validate a law is to derive it from a higher order law together

with statements about initial conditions.”156

154 A philosophical approach that studies society using scientific evidence that helps uncover truths about society. 155 Keekook Lee, The positivist science of law, (Aldershot: Gower Pub Co, 1989) at 133 156 Ibid at 135

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We’ve seen so far in this paper that law, in the way we teach it, understand it and study it,

whether academically or professionally does have scientific traits. This has been made apparent

through the various examples discussed above and mainly in my discussion of law and new

technologies. Theoretically, we’ve visited, throughout Chapter One, the theories of numerous

jurists on this matter and in Chapter Two, we’ve associated what we’ve been arguing from the

very beginning, to the positivist scientific methodology and to real-life examples.

Yet, there is this an obstacle to our theory. There is something that still needs to be settled, an

issue that many legal philosophers have struggled with. Even H.L.A Hart confuses us when he

discusses the “rule of recognition” in chapter five of his book.157 It’s this idea that the ‘higher

order law’ as described by Lee, or Grundnorm as Kelsen would say, must come from somewhere.

What is this higher order? Where is it? Is it factual or ideological?

When Kelsen, Hart and Lee talk about this higher order, or norm, or rule, they are nurturing this

confusion. While they argue from a presumption that the scientificity of law derives from legal

logic, they leave the reader uncertain about what it means for the law to be the result of logical

reasoning. This is probably because, as positivists, they want to engage with the idea that law has

its own characteristics without asserting that law is a standalone science, by fear of sounding too

formalist. As positivists they are attached to the idea that law is a social construct and naturally

would not want to argue anything that could jeopardize that position.

157 H.L.A Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at 91

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My response to the positivist approach is that law can be a science based on logic while

maintaining its social purpose. The problem is that positivists are not explicitly differentiating

between law as a process of logical reasoning, which is scientific, and Law as a policy outcome,

which is socially and politically driven.

There’s also a linguistic argument that comes into play. What we tend to call “Law,” i.e.,

legislation, statutes, case law etc. – the famous “ought to be” is what we should be referring to

as “Policy”. Policy shapes our lives, gives people rights and obligations, sets a framework for

society to function. Policy can be good or bad, can be just or unjust, fair or unfair, right or wrong

etc. Policy can change, be amended, or repleaded. Policy is not set in stone, it can be challenged,

debated, understood from different perspectives. Policy is not scientific, and policy is not law.

What I call “law” is what we tend to call “Legal Reasoning”. The law is its own body of knowledge

that is enshrined in scientific immovable methodologies. I appreciate this claim may not be

believable to all, thus I’m tempted to find a middle ground, between my understanding of law

and that of others.

The Merriam-Webster dictionary gives us six different definitions of Law.158 The meaning put

behind the word “Law” does not necessarily testify to the nature of the concept. Assuming we

158Merriam-Wester definition of the word “Law” online: < https://www.merriam-webster.com/dictionary/law >

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keep the English language as it is, the confusion between policy and legal reasoning, both

associated with the word “Law,” remains.

My modest contribution to this would be to try differentiating “Law” (uppercase “L”) from “law”

(lowercase “l”). Therefore, perhaps it would come as a relief for some that a compromise can be

found. “Law” could be understood as a holistic concept that includes “policy” and “law”, while

“law”, as a standalone phenomenon or discipline, is a mechanical process rooted in scientific

methodologies and is the discipline we study in law school and go on to practice afterwards. Or

more simply: “Law” = legal policy (political and socially charged), while “law” = legal reasoning

(scientific reasoning).

This basic distinction I make seems simple, but it’s fundamental. It changes the nature of our

discussion around the question What is law? It adds a sub question that immediately follows the

original question: which Law are you talking about? It’s not a natural reflection. In answer to the

question What is law?, he would answer law is the set of rules that govern our society. As a first

response most jurists, based on what we are taught in school, would even give this superficial

answer, which in itself is not wrong. Yet jurists are experts of the law who must actively

differentiate “Law” as a concept from “law” as a science.

Let’s imagine if H.L.A Hart were to knock at my door tomorrow and ask me “What is law?” my

response would be “Do you mean Law as a Policy, or law as a science?” He’d probably pause for

a second and ask: “what do you mean by law (as a science).” I would answer that law a science is

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the process based on logic that creates Law (as a Policy). Hart would probably then ask, how one

would define law as described in my book. In The Concept of Law, Hart talks about law as a system

of rules. I would describe his conception of law as a socio-mechanical process that can be

systemized.159 When Hart talks about rules, he is referring to Law as a policy and not about law

(as a science). While he does identify the systematic nature of law, he fails, in my opinion, in

identifying law as a science. This is in contrast to Kelsen who is able to show purity of law and

therefore its scientificity, as discussed in the Chapter One. That said, perhaps Hart never really

had the intention of uncovering the scientificity of law.

Before I move on to the modular representation of this Chapter, I would like to conclude with a

quote from Paul Howland as a small parenthesis to this entire debate on the scientificity of law:

“We answer the query of the student then by saying that, in order to understand the law

of today, it is necessary to know the influences which have shaped its growth-the

underlying forces and principles which have moulded its form, its historical development,

the elementary and fundamental principles which are the basis of our system of

jurisprudence. In this way only can one hope to arrive at a broad and just comprehension

of modern law in all its grandeur and beauty.”160

159 See figure 6 below for a visual of the socio-mechanical process. 160 Supra 115 at 33

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This quote takes us all the way back to an argument implicit in Chapter One. Howland justifies

the Case Method by alluding to the idea that law is the result of a historical process. Indeed, the

scientific nature of law is discovered as result of a deep analysis of this phenomenon. The Law

clearly has scientific attributes that are visible to a jurist who spends time trying to understand

law for what it is and not what it should be.

A big part of this analytical exercise is understanding how Law has been studied and understood

for generations. It helps us unfold the mystery and confusion that still lies around the scientific

nature of law. While Chapter One did not allude to any scientific processes it set the necessary

framework for Chapter Two to dig deeper and uncover the scientificity of law. In Chapter Three

we will consider how jurists, embody this scientificity. If law is a science, are jurists scientists?

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c. Visual representation

Figure 6: law, a scientific process

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CHAPTER 3: IF LAW IS A SCIENCE THEN JURISTS ARE SCIENTISTS

This third Chapter looks at the scientificity of law from the inside. In the previous Chapters my

focus was on describing the law as a scientific concept and process, by looking at the nature and

essence of what law is. I delved into various external factors and methodologies that enabled us

to qualify law as a science. In this final Chapter we’re going to study law from within by looking

at the role of jurists in confirming the scientificity of law. This Chapter will also present practical

and analytical correlations between law and other sciences, mainly mathematics. I finally end this

thesis with an issue that is still making headlines and to which we still haven’t found a settled

answer: the algorithmic translation of legal reasoning.

a. The quest for truth

I’d like to start this chapter with a few expressions all jurists will be familiar with: “beyond a

reasonable doubt,” “preponderance of the evidence,” and “clear and convincing evidence.” We

know these terms to be the standards of evidence for accurate legal and judicial outcomes. In

both criminal and civil proceedings, the notions of certainty and truth are what guide decision-

making. Jurors, lawyers and judges are asked to “better be damned sure”161 before passing a

judgment or presenting evidence on a case. In reference to the term “beyond a reasonable

161 Definition of ‘beyond a reasonable doubt’ in The National Law Journal. Extracted from The People's Law Dictionary by Gerald and Kathleen Hill, online: <https://dictionary.law.com/Default.aspx?selected=59>

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doubt,” Black's Law Dictionary states that the burden of proof must be “undeniable.”162 When

we consider the standards of evidence in civil cases, we are faced with the obligation to present

proof. Even in administrative law proceedings, parties must provide substantial evidence, which

is defined as “enough evidence that a reasonable mind could accept as adequate to support a

particular conclusion.”163 In all areas of law, legal procedure is rooted in this idea of evidence and

fact-based decision-making. Judges combine facts and evidence with legal rules and principles,

using logic to find the truth and make a decision. Such an observation seems to imply that the

practice of law is a sort of truth-finding mission.

Let’s imagine any civil or criminal case. In order to rule on the case, a judge must consider the

evidence presented the him/her on one hand and the legal rules/principle on the other. In the

Common Law tradition, we often refer to a judge’s ruling as “judge-made law.” I would define

“judge-made law” as a two-tier description of law. On one hand “judge made law” is the result

of the judge’s legal reasoning that can be expressed by the following equation: (Rules, Principles,

Cases) + (Evidence i.e. facts/knowledge) = decision. This equation represents the judge’s

scientific reasoning and can be described as a jurist’s quest for legal truth using legal reasoning,

which is based on logic. On the other hand, “judge-made law,” is the result of the judge’s judicial

reasoning, which is the policy outcome of the judge’s ruling. A more through distinction between

legal and judicial reasoning will be presented further down in this Chapter.

162 Definition of ‘proof beyond a reasonable doubt’ by The Law Dictionary, What is proof beyond a reasonable doubt? online: Black's Law Dictionary Free Online Legal Dictionary 2nd Ed < https://thelawdictionary.org/proof-beyond-a-reasonable-doubt/ > 163 Evidentiary standards and burdens of proof explained by Jusita, Lawsuits and the Court Process: Evidentiary Standards and Burdens of Proof (May 2019), online: Justia <https://www.justia.com/trials-litigation/lawsuits-and-the-court-process/evidentiary-standards-and-burdens-of-proof/>

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Going back to the equation of legal reasoning and a jurist’s quest for truth, if we look at the

governing definition of science for this thesis presented in the first Chapter, a similar equation

could be imagined for science: Evidence (facts) + (chemical/physical/mathematical experience

and theory) = scientific theory/law.

Let us consider this further and reason syllogistically. Evidence is the social and empirical reality

that we have around us. Logic is what renders legal reasoning (i.e. law) scientific. The system (i.e.

law), is a combination of knowledge (i.e. evidence and facts) and legal principles (i.e. rules and

precedents). Finally, the outcome is the result of the knowledge and principles rendered scientific

by logic. The outcome is therefore the result of a scientific process. We can go back to figure 5

for a visual representation.

How is this linked to the scientific nature of law? As we see with the equations, it seems that law

and science have very similar attributes when it comes to determining an outcome. Massimi164

tells us that “[t]ruth is neither absolute nor timeless. But the pursuit of truth remains at the heart

of the scientific endeavor.”165 We could replace the word “scientific” with the word “legal” In this

quotation. Indeed, she goes on to raise three “philosophical questions about truth in science.166

The first question is whether science aims at finding the truth, the second is whether science tells

us the truth and the third is whether or not we should expect science to tell us the truth. While

164 Dr. Michela Massimi is a Professor of Philosophy of Science at the University of Edinburgh in Scotland 165 Michela Massimi, Getting it right (2019) , online: Aeon < https://aeon.co/essays/its-time-for-a-robust-philosophical-defence-of-truth-in-science> 166 Ibid

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there exists a lot of literature on these questions, I would like to remind the reader that my thesis

is not on the philosophy of science and I will therefore not be dealing with these questions in the

depth there deserve. All references and answers developed around what science is, are based

on the definition laid out in the first Chapter of this thesis.

Considering these three questions, it seems that we have been implicitly asking ourselves these

questions, throughout this thesis. We have been reflecting on what law is, on the purpose of law

and on the greater role law has to play in our society. These same questions asked by Massimi

can be asked about law and the activity of lawyers and judges. When we are before a court, what

guides our decision-making legal process? Are we seeking to find the truth to make a decision?

Are we expected to find the truth, and do we ever find it?

This question around the truth in law takes us back to the very first Chapter of this thesis. Why

are jurists trying to define law? Why have legal philosophers, for generations, asked the question:

what is law? It may be because we are trying to find a truth about what we do and who we are.

Maybe it’s just inherent to the practice of law. We’ve seen in this section so far that the activity

of lawyers and judges in presenting evidence against a case and deciding on a case all relate to

presenting, arguing, finding and deciding on a truth.

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When we talk about evidentiary standards in law we try to get as close as possible to the truth.

Nobody can ever be sure if something is true or not. We rely on facts, figures and logic to make

our decisions. Hard sciences follow the same approach. Massimi tells us that most scientists, who

are known as “scientific realists”167 in philosophy, “maintain that the best scientific theories aim

at truth as their final goal,”168 while others like van Fraassen, the American-Dutch philosopher of

science, believe that truth is not necessarily needed for a phenomenon to be scientific. What

counts is the empirical adequacy of the theory. In other words, if the numbers add up and theory

stands iterated then the theory stands.

The same debate arises in legal practice. The different evidentiary standards we have, or the

mission given to jurors and judges of being more than convinced by the evidence presented to

them, highlights the struggle, shared by scientists, of finding a convincing enough middle-ground

between what seems true and what seems empirically correct. Massimi tells us that the quest

for truth in science “begins with a commitment to get things right.”169 This is indeed the

commitment of our judiciary. The commitment of rendering justice by finding the truth. She

further argues that “truth is a normative commitment inherent in scientific knowledge;170” an

argument that once again reinforces our thesis. Jurists are on a quest for truth. It is that

commitment that puts them at the very heart of the legal, a scientific community. Massimi

paraphrases Kuhn’s argument that “truth is not an overarching aim of science [what science

167 Prof. Massimi describes them as scientist for whom “the best scientific theories aim at truth as their final goal.” 168 Ibid 169 Ibid 170 Ibid

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merely does] is to increase our ability to solve anomalies that beset the previous paradigm.”171

At this point, law seems very similar to a science. We could perhaps say the same thing about

law. While jurists aren’t given a direct mandate of finding the truth, this quest for truth remains

and indispensable element in the gathering of evidence and the presentation of legal arguments

for justice to be rendered. Our quest for truth is what pushes us to assemble the fats of a case

and come up with a satisfactory judicial and legal outcome (the difference between both

outcomes will be discussed further down in this Chapter).

In terms of legal reasoning, or what we called law in the previous Chapter; legal precedents, our

system of court hierarchy and Kelsen’s hierarchy of norms serve that same purpose of rectifying

the “anomalies” or legal inaccuracies of the past. We refer to a precedent to decide on a case,

we refer to a superior norm or superior court to validate or invalidate a law or a decision.

In terms of “Law” as policy, the same purpose of bettering our societies mirrors Kuhn’s thinking.

Legal philosophers, just like philosophers of science, seem to be facing the same struggles and

asking the same questions around what law and science are. Both jurists and scientists seem to

be on a quest for truth.

171 Ibid

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b. The legal ecosystem

Having spoken at length about the work of jurists and scientists, let’s now take at a look at jurists

as a group of people. We often hear about “the scientific community,” without really knowing

who its members are. We assume that it includes scientists. But just like the scientific community,

we also talk about the “legal community.” These are professional communities. Without going

into a sociological debate on what characterizes a professional community, let me explain what

my definition is for the purpose of this thesis. I believe that a professional community needs to

have the following attributes. The first attribute is that it must be exclusive to those who are

qualified to join it. For example, you need to be a qualified or recognized lawyer or judge to be

part of the legal community. The same would apply, for example, to physicians who are part of

the medical community. The second attribute would be that your qualification stems from your

unique understanding of the issues that are dealt with by this community. For example, you need

to have studied the law to be able to practice it. The same would apply, for example, to

physicians. it’s expected that members of that community are linguistically apt to be part of the

community. For example, understanding legal jargon. To avoid confusion, it’s important to

differentiate professional community from profession. Individually, lawyers, judges and notaries

are the legal profession. When they are all put together the constitute a legal community. Finally,

you need to have a sentiment of belonging or identification to the community.

Adhering to a community means being part of an ecosystem. Let’s bring this back to legal

community. Jurists who constitute the legal community contribute to creating a legal ecosystem.

This ecosystem is basically the set of elements that constitute the space with which jurists, and

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only jurists identify. One of the strongest components of this ecosystem is language. In his book

on Law, Language & Determinacy, Bix describes language as a “medium through which law

acts.”172 Language is a key tool that enables jurists to identify with a certain community.

Bix builds his arguments on language around the work of Hart, Dworkin173 and Moore174 who

had, before him, discussed the importance of language in the study and practice of law. When

we talk about the language of law, we often think of the words and expressions used commonly

by jurists when pleading a case or drafting a contract. This is what we colloquially call “legal

jargon.” Everyday legal language does, to some extent, foster a culture of community among

jurists by allowing jurists to identify with their community. Language becomes an essential part

of the legal ecosystem. While, I’m not associating Bix or his work with what I call the legal

ecosystem, I find his work on the language of law interesting to complete my argument on the

specificity of law.

172 Brian Bix, Law, Language, and Legal Determinacy (Oxford: Clarendon Press, 1995) at 1. 173 American philosopher, jurist and scholar Ronald Myles Dworkin strongly opposed H.L.A Hart’s view of law as a system of rules and that any difference between legal systems and traditions and outcomes could be explained by a difference in language (i.e., in communicating the law). For Hart lawyers and judges are influenced by language when arguing and judging questions of law. We could interpret Hart’s position by arguing that difference in the outcome of a case is due to a difference in language. In Dworkin’s book titled Law's Empire he challenges Hart on a number of points; the language argument being one of them as he talks about Hart’s “semantic sting.” 174 Professor Michael Moore from the University of Illinois argues that language is important in the practice of law to help reach the right outcome of a decision. He is also to some extent nurturing the argument of a quest for truth in the practice of law. Brian Bix describes Moore’s approach as a “metaphysical realism” for whom “theory of meaning is based on the idea that a word refers to a natural kind. Under this approach, the use of a word, and the definition we offer for it, will not necessarily be static, but will change our understanding of the object, event, or idea” see Brian H Bix, “Michael Moore's Realist Approach to Law” (1992) 140 U. Pa. L. Rev. 1299

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Let’s try to represent this visually (Figure 7):

Figure 7: the legal ecosystem

Going back to our argument on legal jargon; it clearly does not constitute the bedrock of the

language argument. To language we add this idea of ‘thinking like a jurist’. From Day One in Law

School, students are invited to start “thinking like a jurist.” What does that mean? How important

is it in one’s legal education to embrace legal thinking and reasoning? Is there a form of reasoning

specific to jurists or lawyers? For Mertz175 “reading like a lawyer turns out to be an essential

ingredient in the transformation to thinking like a lawyer.”176 As discussed previously in our

section the Case Method, a big part of legal reasoning is based on how students are taught to

“talk about legal texts”177 and analyze the logic of law. In her famous piece Thinking Like A

175 Elizabeth Mertz is a law professor at the University of Wisconsin Law School. She specializes in legal linguistics and legal anthropology. 176 Elizabeth Mertz, Learning to Read Like a Lawyer: Text, Context, and Linguistic Ideology (New York: Oxford University Press, 2006) at chapter 6. 177 Ibid

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Lawyer,178 Slaughter tells us that “thinking like a lawyer is thinking like a human being, a human

being who is tolerant, sophisticated, pragmatic, critical, and engaged. It means combining passion

and principle, reason and judgment.” In her piece, Slaughter’s description of what a lawyer’s

reasoning is could be applicable to anybody: “thinking with care and precision, reading and

speaking with attention to nuance and detail […] make arguments on any side of any question

[…] exercising judgment […] combining realism with idealism.”179 Her account does not identify

anything particularly original or unique to the legal realm.

In a subsequent article,180 McKeown, president of LexBlog, an outsider to the legal ecosystem,

but somebody who spends enough time with jurists to have an opinion of what it means to think

like a lawyer – builds on the words of Slaughter. He emphasizes her quote that thinking like a

lawyer is “combining passion and principle, reason and judgment.”181 This is perhaps one of the

hardest elements of legal reasoning: finding the right balance between the syllogistic nature of

law and the sociopolitical expectation people have of jurists. How do you honor the unique

complexity of legal substance while embracing the mission that comes with being a jurist, the

quest for truth? Depending on the jurist you are, that quest serves a different purpose. As a legal

philosopher your quest is to understand what law is and what we do as jurists. As a judge, your

quest is to find the truth, to deliver justice.

178 Anne-Marie Slaughter, “On Thinking Like A Lawyer” (2002) Harvard Law Today 179 Ibid 180 Kevin McKeown, “Thinking Like A Lawyer Is A Technique — Not A Lifestyle” (2014), online: Above The Law <https://abovethelaw.com/2014/06/thinking-like-a-lawyer-is-a-technique-not-a-lifestyle/> 181 Ibid

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This is a topic we touched upon in depth in the previous Chapter. We discussed the scientific

attributes of legal reason. We looked at legal reasoning from an internal point of view; a jurist’s

point of view. In this Chapter, dedicated to the scientificity of jurist and not the law, I want to

look at legal reasoning from the external point of view, the view of a non-jurist. The syllogistic

argument is the following. Only a jurist can think and reason like a jurist, and only a jurist can be

part of the legal ecosystem, because you need to think like a jurist to be part of the system, which

means that if you’re not a jurist, you’re not part of the ecosystem. This same logic of identification

would apply to the scientific community. The argument we can make is just like medicine, law is

organized in a way that enables us to refer to lawyers as scientists.

Law schools and faculties play an important role in helping future jurists fit into the legal

ecosystem. In particular, law schools and faculties develop the intellectual and psychological skills

of students to help them eventually join the community. ‘Intellectual skills’ are those that can be

acquired in the classroom. In his book titled Thinking Like a Lawyer,182 Schauer had the following

to say about the skills we acquire in law school. For Schauer, a legal education cannot be reduced

to learning basic laws and theory or what procedures needs to be followed in a courtroom.183 To

quote Schauer, “what really distinguishes lawyers from other sorts of folk, so it is said, is mastery

of an array of talents in argument and decision-making that are often collectively described as

182 Frederick Schauer, Thinking Like Lawyer (Cambridge: Harvard University Press, 2009). 183 Ibid at 1

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legal reasoning.”184 In this introductory paragraph to his book, Schauer summarizes brilliantly

what we should be thinking about when we’re drawing up a law curriculum. I’ve highlighted in

bold three parts of this paragraph that, I believe, complement the arguments I’ve outlined

previously. Law is a very complex concept that many scholars, for generations have tried to

grasp, define and understand. No law school can have the pretention of claiming to educate their

students on every single aspect of legal knowledge and be sure that every single jurist, graduating

from their walls will have acquired, understood and mastered the theory and practice of law

perfectly and in the same way. This shouldn’t even be the mission of a law school. Rather, as

eloquently put by Schauer and Slaughter, law schools are here to provide future jurists with the

skills of building arguments and taking a stance. I’d also like to pick up on Frederick Schauer’s

implicit words on the community of jurists: “what really distinguishes lawyers from other sorts

of folk.185” Indeed, I think these echoes perfectly what was discussed earlier regarding jurist being

part of a legal ecosystem.

c. Lawyers and mathematicians, same thing?

In the previous section we discussed what is means to “think like a jurist/lawyer.” Let’s now go

further in the argument and see if thinking like a jurist can also mean thinking like a scientist.

184 Ibid 185 Supra 182 at 5.

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Albert Einstein once said that “one reason why mathematics enjoys special esteem, above all

other sciences, is that its laws are absolutely certain and indisputable.”186 “While Einstein may

be right, this does not mean that there aren’t any similarities between mathematics and other

sciences. In this section I will try to offer common sense observations on the methodological and

practical similarities between law and mathematics. Mathematics tries to represent concepts

through symbolic logic and the use of axioms which is why I’ve chosen mathematics as a scientific

discipline comparable to law. This section will lay out the similarities between mathematical and

legal reasoning and will also examine the logical thought process and methodology they are both

entrenched in.

Let’s look at these similarities between law and mathematics a bit closer. As mentioned in the

first part of this Chapter, jurists seem constantly be on a quest for truth. The eagerness to find a

truth in law seems to be at the heart of (i) legal thinking as seen with the different philosophical

approaches discussed in Chapter One; (ii) legal reasoning with the scientificity of the legal

methodologies observed in Chapter Two; and (iii) legal practice with the role and work of jurists

described earlier in this Chapter.

This quest for truth in law is a testament to the scientific nature of our field. We discussed earlier

in this Chapter the role of lawyers and the standards of evidence that tend to find the truth. A

similar observation can be made about the work of judges. A judge’s ruling on a certain situation

is by nature an exercise of imposing a “truth” on society. Based on the truth that he is given; the

186 Stephen Hawking, A Stubbornly Persistent Illusion: The Essential Scientific Works of Albert Einstein (Philadelphia: Running Press, 2009) at 249. This quote is extracted from an address that Einstein delivered on 27 January 1921 at the Prussian Academy of Sciences in Berlin on the topic of “Geometry and Experience.”

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judge makes a ruling that in itself becomes the truth for a particular case, and for the rest of

society if a similar case were to present itself. This is the concept of precedent. Judges refer to

judgments that were made by previous judges and see them as truths they can build on. A

decision that is overturned by a superior court is one that failed to meet the test of truth to which

the law tends. It can be regarded as a wrong decision, a mistake that was imposed on society and

that is seen rectified by taking a second and sometimes third look at a case. How, then, does a

third level of court or the highest court of a land have the ultimate truth. Where does that

legitimacy come from? It indeed does not have a divine legitimacy that makes it the champion of

the truth; the mere fact that its decision is seen as being imposed on all and is unchallengeable

(except in later cases with similar facts) makes it the standard that all future generations of jurists

will consult. That’s what makes that decision the truth.

Just as mathematics tends to establish universally understandable truths, jurists attempt to do

the same in their exercise of the law. Several researchers have touched upon the idea of law and

mathematics sharing similarities. In his 1979 piece on Mathematics as the Background for the

Study of Law, Gemignani gives a straightforward definition of “mathematicians,” a definition that

helps us draw a parallel with legal reasoning. Gemignani states that “mathematicians are trained

to travel the strict path of logic from hypotheses to conclusion.”187 Judges are also expected to

travel the path of logic. As mentioned in the first part of the second Chapter, while a judge is

187 Gemignani, Michael, “Mathematics as Background for the Study of Law” (1979) 86:8 The American Mathematical Monthly at 698.

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given discretionary power in interpretation, the reasoning adopted to reach a decision is based

on logic.

At first glance, it would be easy to discount the similarities between law and mathematics as

there are stark differences between the reasoning processes of each. Lawyers are expected to

be able to argue both sides of a case. Laws and axioms don’t hold the same value, for a Law (rule)

can be subject to numerous interpretations. Mathematics gives most of the time irrefutable

conclusions based on pure logic while a legal argument plays on a judge’s emotions and is about

persuading a court rather than convincing it. I could go on for hundreds of pages on the reasons

why mathematics is different from law. If I were to give in to these arguments, my thesis would

serve no purpose whatsoever. To understand the correlation we’re trying to make between law

and mathematics, it is important to clearly remind the reader what we’re trying to compare.

Going back to Chapter Two, this thesis is discussing law as a systemized socio-mechanical process.

We previously defined law as a scientific intellectual phenomenon that we commonly refer to as

“legal reasoning.” We’re talking about law as a methodology of adjudication and process of

reasoning and not Law as a form of policy or social construct.

Gemignani offers a number of very interesting arguments to back the scientificity of law. He

argues that while courts may decide differently on a similar question of law, “any court when it

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issues a written opinion tries to justify its decision by a more or less logical argument which begins

with certain premises.”188 These premises, he says can be laws, precedents, constitutional

principles… he furthers his argument in stating that “court opinions often differ not so much by

their logic but, rather, in the premises which underlie their arguments.”189 He offers here a

comparison with mathematicians, who he sees as not only trained in logical skills to “aid in

following the argument, or finding the fallacies in it, but [are] more aware than most of the

"axiomatic method" and hence [are]looking for the underlying hypotheses of the system.”190

Another similarity can be observed the methodology that is used in both legal and mathematical

reasoning. They are both used a formal science in the sense that legal reasoning and

mathematical reasoning both follow the principle of logic and just as the axiomatic method

prescribes, see their starting point being a hypothesis on which they build an argument and reach

a conclusion. Both law and mathematics use a logic-based system that generates a form of

knowledge (i.e., result or outcome). In law, this conclusion is what we would call a decision. I

would like to differentiate between a legal decision and a judicial decision. The former is the

result of a scientific process (legal reasoning) what we could also call legal outcome, the latter

being a policy driven outcome, what we could call judicial outcome. A judge’s decision is of a

double nature. It is judicial and legal. Our focus in underlining the scientificity of law is looking at

188 Ibid 189 Ibid 190 Ibid

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the legal outcome. In every judicial decision there is one or several legal decisions. Let’s present

it visually (Figure 8):

Figure 8: legal vs judicial reasoning

Further insight on the relationship between law and mathematics, is provided by Goldberg.191 In

a 1981 article on legal and mathematical reasoning,192 Goldberg reinforces the argument

previously made by Gemignani that judicial opinions have a formal structure just like

mathematical proofs.193 He states that “the typical appellate judicial decision uses the axiomatic

method in the sense that the decision attempts to provide a reasoned progression from premises

191 Steve P Goldberg is an Associate Professor of Law at Georgetown University Law Center 192 Steven P Goldberg, “On Legal and Mathematical Reasoning” (1981) 22:1 Jurimetrics J 83. 193 Ibid at 83

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to conclusions.”194 He makes a strong argument to differentiate between “legal reasoning”

(“legal outcome”), which is scientific, and “judicial outcome,” which is policy and thus political.

Goldberg argues that while “the prose may be imprecise, the premises or conclusions may be

suppressed or only partly stated, but the fact remains that the court generally publishes an effort

to explain, in rational terms, its result.”195

Another interesting point raised by Goldberg, which is at the heart of his argument, is the contrast

that needs to be made between the use of the axiomatic method and the consensus around the

axioms that are used. As jurists we’re often tempted to think that mathematics is the art of

uncontestable truth. If something is proven mathematically than it’s true. Philosophers of

science, as seen above, have shown that such a conception of science is not necessarily accurate,

and the history of mathematics reflects that same position.

As stated by Goldberg, “while an individual mathematical theorem is indeed a persuasive

demonstration, when one steps back […] mathematicians disagree on the validity of particular

axioms, and, at times, on the validity of entire classes of axioms.”196 With such a statement, we

realize that mathematics and legal reasoning are very similar.

It’s become apparent that judges, just like mathematicians, use the axiomatic method in their

reasoning. Logic is what drives both a judicial decision and mathematical proof. The situation

we’re often faced with as jurists is the question of certainty. We know is that a judge will start

194 Ibid at 84 195 Ibid 196 Ibid at 86

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looking at a case by identifying premises (or axioms) that will lead him/her to a conclusion, but

we can never be sure which premise a judge will start with; and depending on that premise the

conclusion might vary.

As stated by Prof. Goldberg, “in writing an opinion, a judge has a vast supply of axioms he or she

can draw upon. Precedents, statutes, constitutional provisions, assumptions about human

nature, experience from the past, unwritten principles, and more exist in bewildering variety.”197

This naturally leads to disagreements between judges on which axiom to use and the validity of

one axion over another in a specific case. It’s fairly simple, “judges can disagree on whether a

case is more like one precedent than another because they disagree on which features of the

case or precedent are essential for the task at hand.”198

The conclusion we draw from this reality is that although logic is the methodology that drives a

judge’s decision-making, the axiomatic method, is just a method, if judges disagree on the

premises, regardless of the methodology we use, we will never get a consistent result.199

That said, consistency in judicial outcomes cannot be a factor we observer when trying to

underpin the scientificity of law. As stated throughout this piece, it’s important for us to clearly

197 Ibid at 85 198 Ibid at 86 199 Ibid

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dissociate legal reasoning from policy making. To those who might be tempted to argue that this

lack of consistency stemming from the disagreement around axiomatic validity disqualifies law

from being part of the scientific realm, it seems like mathematicians have been faced with similar

claims. I quote as is, an example presented by Prof. Goldberg: “Before Euclid, the Pythagoreans'

assumption that whole numbers and ratios of whole numbers exhausted all possible

measurement was jolted by the claim that some possible measures, such as those involving what

we now call the square root of 2, could not be expressed by whole numbers or their ratios.”200

Another interesting point about the correlation between law and mathematics is that many

concepts in mathematics as in law, are fairly abstract and are not afforded any simple

definition.201 Mathematics brings us back to an earlier part of this Chapter where we discussed

the “legal ecosystem”:202 Gemignani gives an example in mathematics, where “a group is a set

which has certain properties-properties which, in turn, imply other properties. Groups can be

categorized in various ways, such as abelian, nonabelian, simple, finite, infinite, etc., with respect

to properties they possess above and beyond their merely being groups.”203 He draws similarities

with the approach that is taken in defining legal terms. Gemignani rightly observes that while a

fundamental legal concept can be given a brief and simplistic definition understood by all, “its

full range of implications can only be understood through a thorough study of what courts and

legal scholars have said about the concept. We go from the general to the more specific,

200 Ibid 201 Supra 187 202 See part b of this Chapter 203 Supra 187 at 698

107

distinguishing ever more finely to arrive eventually at some real understanding of what the initial

concept means in practice.”204 We see that not only do law and mathematics share a common

practical reasoning strongly axed on logic; the definitions that emerge from both legal practice

and mathematical reasoning both stem from a similar general conceptual observation and are

narrowed down to intelligible and researched conclusions we could perhaps characterize as

“truths” … We could represent this through the following equation: [Hypothesis + (Facts +

Precedents)] / Logic = Decision (Legal outcome)

or in more mathematical terms: [Premise + Axioms] / Axiomatic Reasoning = Conclusion (Proof).

d. “Legal algorithms”: a tangible example of law’s scientific nature

After looking at the similarities between legal reasoning and mathematics, it is worth considering

a current pressing topic for the legal community, and that is the role AI (or more specifically

machine learning) is having on the future of the legal practice. We looked at this issue previously

in Chapter Two as we were seeking to understand the systematization of law. Machine learning

solutions were excellent examples to help illustrate how law can be translated in a mechanical

process. In this part of the thesis, the purpose is to shed light on the development of it in the

legal profession. Such an issue is still subject to many questions. My intent is not to disclose the

mysteries behind robot-lawyer or robot-judges but to merely identify the characteristics of law

204 Ibid

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and the legal profession that enable it to be processed by artificial intelligence. These

characteristics would once again reaffirm the scientificity of law and jurists.

Dervanović,205 in Robotics, AI and the Future of Law,206 includes a chapter on artificial intelligence

in the legal profession207 and discusses what an “inhumane” lawyer would look like. Before

delving into that, she rightfully sets the stage by stressing that “the nature of law must be

examined in order to conduct a profound analysis of the question of inhuman lawyers.”208 For

her, understanding what law is “is the founding premise of creating a fully autonomous AI lawyer

that is able to practice law.”209 The first question she raises is whether law can be made into an

algorithm. It seems that the task is not as impossible as it may sound. Indeed, we’ve seen that

law and mathematics follow the same patterns of axiomatic reasoning. But to what extent can

that reasoning be translated into a formula?

Dervanović introduces us in her chapter to “formal deontics,” which is what she characterizes as

the “study of legal norms by using mathematics.”210 The idea is to consider law as a norm or rule-

based system and base the formulas on general concepts and principles of law. As argued by

Dervanović, “mapping legal concepts, as such, could be achieved by using natural language

processing techniques—the technology is mature enough for that; this would be achieved with

205 Dena Dervanović, Data Protection Lawyer in Sweden, contributor to the book Robotics, AI and the Future of Law 206 Marcelo Corrales, Mark Fenwick and Nikolaus Forgó, Robotics, AI and the Future of Law (Singapore: Springer. 2018) 207 Ibid 209 at 234 208 Ibid at 212 209 Ibid 210 Ibid at 219

109

the help of legal glossaries and lexicons.”211 This is where machine learning kicks in and the

development of legal tech-solutions can prove to be interesting. What is of the utmost

importance for us is being able to identify why law can be translated algorithmically. The

argument repeats itself.

By virtue of its nature, law is the result of an axiomatic and thus scientific process. The

existence of a legal rule or concept stems from an axiomatic exercise. As seen previously,

regardless of the different policy outcomes that emerge from a decision and that are due to

different variables in context, argumentation and interpretation, the syllogistic process that

leads to that decision is duplicable to all outcomes. It’s that process, that I call legal reasoning,

that can be translated algorithmically, and this is what testifies once again to the scientific

nature of law. I realize that my argument on the syllogistic approach to the application of law

does not produce a consensus among all legal scholars. While I acknowledge that a big number

of scholars believe that legal rules must be interpreted, and that interpreters necessarily must

exercise discretion and judgment, I still believe that such interpretations cannot be regarded as

being legal reasoning but rather constitute an act of policy-making by jurists.

A third example we can look at it that of legal drafting. One of the champions around this issue

is William S. Veatch, Partner at Reed Smith LLP in California, who has written a number of books

on the logic of law and the algorithmic correlations between mathematics and law. In an article

211 Ibid

110

written for the American Bar Association,212 he discusses the various efforts he’s undertaken to

“develop a foundation in mathematics and logic for artificial intelligence (AI) applications used in

legal drafting.”213 This is interesting for the purpose of our thesis because Veatch clearly states

that “for true Artificial Intelligence in the law, we need a firm foundation in mathematics.”214 He

echoes this remark in his 2018 book215 where he discusses the application of the “logic of lattices”

commonly known as the “boolean logic,” which is based on applying boolean algebra to law and

the emergence of what he calls “the new logic of law.”216

To borrow Veatch’s definition, this form of reasoning is based on “mathematical rules built upon

the operations of union, intersection, and complementation. In fact, these operations establish

a complete system of logic where union, intersection, and complementation correspond

precisely to the logic operations of OR, AND, and NOT.”217 He explains his “new logic of law” as a

mix of classical logic, what we referred to previously as “axiomatic reasoning” or what US Court

of Appeals Judge, Ruggero J. Aldisert calls the “Categorical Syllogism of Classical Logic,”218 and

the logic of lattices. Veatch has developed numerous examples of how “new logic” can translate,

through legal drafting, concepts of law into algorithms. The idea is to “convert various types of

212 William S. Veatch, Artificial Intelligence and Legal Drafting (April 2019), online: American Bar Association, Legal Analytics Committee Newsletter <https://www.americanbar.org/groups/business_law/publications/committee_newsletters/legal_analytics/2019/201904/ai-legal-drafting/> 213 Ibid 214 Ibid 215 William S. Veatch, The New Logic of the Law: Building a Foundation for Artificial Intelligence in the Law, 1st Ed (Amazon Publishing, 2018) 216 Ibid 217 Ibid 218 Ruggero J. Aldisert, Logic for Lawyers – A Guide to Clear Legal Thinking, 3rd Ed (South Bend IN, LexisNexis / National Institute for Trial Advocacy, 2001)

111

legal writing to a data format, where the ideas in the legal document are stored as fields of data

in a Boolean Lattice.”219

Veatch’s reasoning shows that not only from a conceptual standpoint law and mathematics

adhere to the same type of logistic reasoning but that this reasoning can be transformed

algorithmically to build AI based legal-tech solutions and to also offer “a much greater level of

detail or granularity”220 of legal thinking and analysis. When talking about AI and law, Veatch

raises a very important point, one that was raised by Dervanović and that I mentioned myself a

number of times in this Chapter. He once again emphasizes the distinction between the reasoning

and the outcome of law. He does so by referring to his first book on the ‘mathematics of ideas,221’

where he discusses the role of mathematics in explaining human ideas. In this article he draws a

good parallel to law. He states: “mathematics and logic build artificial intelligence software

applications that mimic “how” we think. While computers cannot currently decide “what” to

think, they can analyze large amounts of data faster than humans using the techniques of “how”

we think.”222 He indeed reinforces our argument on the scientificity and objectivity, observed

with the use of algorithms, of legal reasoning (law) versus the politically charged and subjective

nature of policies that emerge from such a reasoning (Law).

219 Supra 215 220 Ibid 221 William S. Veatch, Math Without Numbers: The Mathematics of Ideas, 1st Ed (Amazon Publishing, 2016) 222 Supra 215

112

e. Visual representation

Figure 9: law, a scientific practice

113

CONCLUSION

As I was writing this thesis, I thought of my first-year law professor, whose, perhaps, purposeful

and legitimate ignorance on the question of what law is, piqued my interest in trying to shed

some light on this issue. There’s no doubt that this uncertainty around the question of law, not

knowing where law fits in the academic and intellectual world, has led jurists for generations to

seek an answer. After almost a decade of observing jurists, studying the law and practicing it, I

came to the conclusion that law could be identified as a science. All I needed to do is explain why

I reached such a conclusion.

If there’s one thing this thesis has taught me, it is that identifying the nature of the legal concept

is not something obvious. This thesis certainly confirms what Aristotle referred to as “the

complex nature of law.”223

As I warned the reader in my introduction, I do not offer a definition of the concept of law, nor

would I ever dare to engage in such an exercise. The purpose of my thesis is to give an identity to

the concept. Hopefully, this work is a first step in ridding ourselves, as jurists, of the intellectual

and academic confusion of where the law fits. Identifying the law as a science; molded,

construed, reasoned and understood as a stand-alone concept is what I’ve attempted to do. The

223 W. von Leyden, “Aristotle and the Concept of Law” (1967) 42:159 Philosophy – The Journal of the Royal Institute of Philosophy at 16

114

success of that endeavor is yet to be determined by the reader. Uncovering the scientificity of

law by looking at its nature, processes, methodologies and practices does give the law the

legitimacy to stand alone as its own self-identified scientific concept. A scientific concept as is the

science of mathematics or physics. However, the scientificity of law does not seclude it from

other disciplines it’s been associated to for so long. History, sociology, politics, literature,

economics etc. can all still offer great complementary to the study of law but are not longer

necessary elements of its existence.

I end this thesis reiterating the crucial distinction that was exposed throughout this work

between law as a science and Law as a policy. The scientificity of law which is its essence, its

construct, its reasoning reserved for jurists to study, understand and practice and that testifies

to its objectivity should no longer be confused with its politically-charged subjective outcome,

which is the Law we are exposed to as private individuals on a daily basis. To close I can only end

by quoting Justice Cardozo of the United States Supreme Court, whose immortal words

summarize that distinction and reinforce our quest to establishing the scientificity of law in the

face of those who still deny its existence. This quote, I think, embodies my thesis to the fullest:

"the law has its formulas, and its methods of judging, appropriate to conservation, and its

methods and formulas appropriate to change. If we figure stability and progress as

opposite poles, then at one pole we have the maxim of stare decisis and the method of

decision by the tool of a deductive logic; at the other we have the method which

subordinates origins to ends. The one emphasizes considerations of uniformity and

115

symmetry and follows fundamental conceptions to ultimate conclusions. The other gives

freer play to considerations of equity and justice, and the value to society of the interests

affected.”224

Wanting to show that law is a science should also trigger some reflection around where we are

heading as a legal community. By associating law to formal sciences, we are indirectly opening

the door to a number of discussions around what it means to be jurists and what it means to

study and practice the law. The emergence of new technologies built to offer greater efficiency

and predictability in law only reinforce our argument of a scientific nature of the legal concept.

We see now, more than ever how law (legal reasoning) can be translated algorithmically and

syllogistically. We hear talks about robots replacing lawyers. This thesis should reassure jurists

and the world as a whole that what could be replaced by robots are all the attributes of the

scientificity of law and not its policy outcomes.

I close by echoing the words of Leslie Green, Professor of the Philosophy of Law at the University

of Oxford, who wrote the introduction to the third edition of H.L.A Hart’s Concept of Law. Green

starts the introduction with the words “Law is a social construct.”225 Indeed, he might be right;

“Law” probably is a social construct, but “law” is a scientific process.

224 Benjamin N Cardozo, The Paradoxes of Legal Studies (New York: Columbia University Press, 1928) at 8 225 H.L.A Hart, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at xv

116

FINAL FIGURE (10) – THE SCIENCTIFIC NATURE OF LAW

117

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