Un peu de débroussaillage dans le domaine de l’épistémologie juridique

In this article, the author endorses four thesis with regard to legal epistemology seeking to explain and appraise the most flagrant ideological drifting contained in contemporary legal theory. The first thesis calls to mind that “law” is not that of a reality, that the “law” does not command the order of being and having, and that any discourse on the “law” does not prompt its existence in the physical world. The second thesis specifies that factual constituents do not allow the drawing of conclusions on the level of law, and that contemporary legal scholars would do well to reflect upon the teachings of David Hume as well as the logical prohibition in believing that a rationalization may be transfigured from fact into “law”. As for the third theses, it delves into the ideological phenomenon that consists in rationalizing on the basis of some “ready-made law”, or even operationalizing or referring to some “ready-made law” thesis that the author criticises as being ideological and irrational. Now in the fourth thesis, the author takes careful aim at sowers of conceptualizations, who substitute all thinking on the possibility of the law, preferring to charge head-long into the contemplation of concepts, whether old or new, by presupposing that the preceding is nothing more than “law” ; thereby joyfully confusing the act of sowing conceptualizations and serious ponderation on an issue of law. Through this enquiry into these four controversies — interrelated with one another — the author calls upon legal scholars to take into serious consideration the bedrock needs of legal epistemology. He exhorts the legal community to renew their interest in contemporary legal thinking as have done women and men who have run the risk of cutting the law down to their size.

This content has been updated on November 3, 2015 at 17 h 05 min.