Juristenrecht: Inventing Rights, Obligations, and Powers
The paper aims at distinguishing between legal science, properly so called, i.e., the neutral description of the law in force, and so-called legal dogmatics, i.e., the actual practice of academic lawyers. A preliminary distinction is made among (different
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Juristenrecht: Inventing Rights, Obligations, and Powers Riccardo Guastini
Scientific neutrality is […] a habit of life, […] our way of taking part in political struggle Norberto Bobbio
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Expository Versus Censorial Jurisprudence
The very beginning of every discussion about neutrality, meant as “Wertfreiheit”, in the legal domain—it seems to me—is Jeremy Bentham’s distinction between expository and censorial jurisprudence: “A book of jurisprudence can have but one or the other of two objects: (1) to ascertain what the law is; (2) to ascertain what it ought to be. In the former case it may be styled a book of expository jurisprudence; in the latter, a book of censorial jurisprudence: or, in other words, a book on the art of legislation”.1 Bentham’s distinction is echoed by John Austin in the following way: “The existence of law is one thing, its merit or demerit is another, whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a
“La neutralità scientifica è […] un abito di vita, […] il nostro modo di partecipare alla lotta politica”: N. Bobbio, “Lettera a Nicola Matteucci” (1963), a cura di C. Margiotta, in Materiali per una storia della cultura giuridica, XXX, n. 2, 2000, p. 418. 1 J. Bentham, An Introduction to the Principles of Morals and Legislation, ed. by J.H. Burns and H.L.A. Hart, Clarendon Press, Oxford, 1996, pp. 293 f.
R. Guastini () Department of Law, University of Genoa, Via Balbi, 30, 16126 Genoa, Italy e-mail: [email protected] J. Ferrer Beltrán et al. (eds.), Neutrality and Theory of Law, Law and Philosophy Library 106, DOI 10.1007/978-94-007-6067-7_7, © Springer Science+Business Media Dordrecht 2013
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different enquiry. A law, which actually exists, is a law though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation”.2 The same attitude is shared by Hans Kelsen too: his “pure theory of law” purportedly responds to “the required separation of legal science from politics”3; the pure theory “is being kept free from all the elements foreign to the specific method of a science whose only purpose is the cognition of law […]. A science has to describe its object as it actually is, not to prescribe as it should be or should not be from the point of view of some specific value judgments. The latter is a problem of politics, and, as such, concerns the art of government, an activity directed at values, not an object of science, directed at reality”.4 Both Bentham and Austin, as well as Kelsen, aimed at distinguishing the valuefree knowledge of the law from (a) the moral or political criticism and/or approval (or justification) of the existing law as well as (b) legal policy (viz., directives de lege ferenda addressed to the legislature). Notice that if law is conceived of as a language—the language of law-giving authorities5—then both expository and censorial jurisprudence are second-order languages whose object-language is the law itself. Both concepts (expository and
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