(Posted in Law No. 310 of 07.06.2010). Francisco José
OF SOLAR RED
Lawyer PUCP and U. Central de Venezuela (UCV).
Graduate in Law, History and Communication Studies.
Professor of History of Law in UIGV.
article in honor of the renowned maestro José Félix Palomino Manchego (Lima, n. 1957) Professor of Philosophy of Law, Constitutional Law and Political Science at the Universidad Nacional Mayor de San Marcos, Inca Garcilaso de la Vega, San Martín de Porres and Lima. Also, the Judicial Academy. Executive secretary of the American Institute of Constitutional Law (Section Peruana). Director of Professional Academic School of Law, San Marcos.
Legal Empiricism is a current or movement of philosophy of law whose origin is primitive or basic, no doubt, in the British empiricism promoted and disseminated the philosophers John Locke (1632-1704), George Berkeley (1685 - 1753) and David Hume (1711-1776). LEGAL Empiricism
This, however, developed mainly in France and Germany, unable to identify specifically any operator. Holds, namely that there is no law that manufactured or produced as a result of social facts, political, economic and historical factors that have been tested, made or given, as is, without interpretations or speculations later rationalistic character. In other words, deny, on the one hand, the existence of innate or natural rights of man, and on the other hand, the use of reason in the creation of law.
I suggest that is based on the law is a reality and evolution socio-cultural, which is generated and captured from the experience, the accumulation of knowledge acquired in the transition from the life of man in society, given that human beings are born without knowledge, is thus a "tabula rasa "or" blank. " Like its original source British empiricism rejected the excesses of rationalism as a means of knowledge-criticized legal empiricism rationalist natural law a priori by its desire to pigeonhole and even fossilized human rights and / or society develops its product knowledge from experience, that is, of lived experience, of what happened. This open
confrontation of empiricism against rationalism, the largest German legal philosopher Immanuel Kant (1724-1804), sought to establish a bridge between the two philosophies, restricting knowledge to the field of "post-experience", which coincided with the empiricists; however, also attributed to the mind's ability to recognize reality through reasoning, human faculty that is independent of experience. This, likewise, agreed with the rationalists. This new movement paved the way for the advancement and progress of a new empiricism in its various aspects that will be paid and empowered by the social positivist philosopher Frenchman Auguste Comte (1798-1857).
Consequently, legal empiricism of the legal experience of man and of peoples. That is, study, analyze and observe the existing law, experienced in this (current law) with respect to the law passed (historical law), comparing not only the institutions and legal norms, but also systems and different legal orders. Hence, within it, were generated several schools, having developed such as science or independent and autonomous legal disciplines that have subsequently supported the scientific law. They are, History of Law, Law Comparative Theory of Law, Sociology of Law, and, more recently, Ethnohistory, Anthropology and Archaeology legal, among others.
INDUCTIVE METHOD
In this context, the legal empiricism also favored the inductive method (from the particular to general) which is the method of empirical science, and what law applies. This is part of specific points (individuals) that are observed and experienced in finding adequate, allowing lay down general rules for understanding the man and his will. This means that induction is achieved particular skills that allow us to formulate principles conclude that by describing a deduction (Idea and / or general theory). Mutatis mutandis, this is the scientific method. Undoubtedly occurs mainly in criminal law, criminology and Jurisprudence.
Indeed, not surprisingly, the legal philosopher and German criminal Adolf Merkel (1836-1896), although more positivist empiricist, found in his works that modern jurisprudence permanently applied empirically by this method. However, it is worth noting that the criticism and legal empiricism rejects the application of induction, have been extremely strong in the sense that the observations, experiments and findings that can be made out to be, no doubt, totally limited and even biased.
Hence, some argue that this is one of the main reasons why the legal empiricism has not been very successful and rather be deformed in various streams.
In fact, one of them, perhaps the principal, in England itself, was given the "utilitarianism", which was advocated by the legal philosopher Jeremy Bentham (1748-1832) and John Stuart Mill (1806-1873). Another, also support taking legal positivism Friedrich Karl von Savigny (1779-1861) and the amendments made by German jurist Rudolf von Ihering (1818-1892), is culminated in the "legal realism." It was developed by both American and Scandinavian schools. The first had as its most prominent representatives of the lawyers Roscoe Pound (1870-1964), Oliver Wendel Holmes Jr. (1841-1935) Louis D. Brandeis (1856-1941) and Julius Stone (1907-1985), distinguished professors at Harvard University. The second, known by the name of Uppsala School, recorded as the lead manager and broadcaster Axel Hagerstrom jurist (1868-1939), or also Hägerstrim, Swedish professor with over 40 years teaching law at the University of Uppsala, Sweden. His influence was evident after World War II significantly affecting the analytical normativism used to amend, in part, to legal positivism. In this trend, are the legal philosopher Lionel Adolphus Hart (1907-1992), British lawyer professor at the universities of Harvard and Oxford (Vid. Law No. 284 of 01.05.2010, article by renowned Peruvian lawyer José Ávila Herrera) and Norberto Bobbio (Turin 1909-2004), Italian jurist, Professor at the Universities of Camerino, Siena, Padua and Turin, among others.
mainstream legal philosopher
To locate the legal empiricism within these streams, perhaps we could point as a hypothesis work the existence of six major potential movements. These are:
1. Theistic natural law that began in the seventeenth century BC (Code of Hammurabi, 1692 BC) to the s. AD XVI, with a number of variations and interpretations.
2. Rationalist natural law prevailing during the XVI and XVII of the AD, also known as the "legal rationalism." Among other mentors, were the Dutch legal philosopher Hugo Grotius (1583-1645) and Baruch Spinoza (1632-1677), lawyers Samuel von Pufendorf Germany (1632-1694) and Cristian Tomasius (also known as thomasi or Tomasino, 1655-1728), the Prussian Christian Wolf (1679-1754), etc. On Grotius, lawyer Jorge González Bolaños wrote an interesting article (Vid. Law No. 284 of 01.05.2010).
is worth emphasizing that all of them advocated the secularization of law, away from the "creationist theory" or "theistic natural law." In short, he began the influence of positive law against the natural law, which was consolidated with social positivism of Comte, in the legal field will reach its peak with Von Savigny, in formulating his theory of "legal positivism" and the creation the "Historical School of law."
3. Legal Empiricism, breaking into the beginning of the seventeenth century until the eighteenth to dazzle, to be absorbed, in large part by the scientific mainstream in general and legal philosopher in particular happened. The first with Comte and the second with Von Savigny, as we noted.
4. Legal positivism that took advantage of the partial success of its predecessor to monopolize part of the nineteenth and twentieth centuries, with the proposition of Von Savigny, both Von Ihering reformulated as Gustav Radbruch (1878-1949), providing more social content, however, later renovated, unfortunately, consistent with the ultimate source for the lawyer of Jewish origin Austrian-born American Hans Kelsen (1881 - Berkeley, California 1973). However
his resounding victory for the primacy of Romance and Germanic studies carried out by the most eminent German jurists then, legal positivism as both savigniano Kelsen, had problems in the twentieth century with the misuse given the Adolf Hitler's Third Reich. In the first case, the application of "Volksgeist" (soul or spirit of the people nationally), and, second, the rule of law ("dura lex, sed lex") over the values \u200b\u200bfundamental rights , justice, etc. Vital support of the "Pure Theory of Law."
5. Legal realism that comes originally from late eighteenth and early nineteenth seeking to impose, on the one hand, the "utilitarianism" British Staurt advocated by Bentham and Mill, and was gestated by empiricism iuspositivism legal and inheritance, creating, unfortunately, in our view-a both moral and legal relativism at the expense of ethical principles and core values. (Vid. Law No. 299 of 20.04.2010, the prominent young lawyer and prosecutor Juan Fernando Bravo Reategui).
The English empiricist philosopher and jurist Herbert Spencer (1820-1903), joined the "utilitarianism", in that it raised an evaluative concept of the law in relation to the aims of conservation of the species and man, according to the law of progressive evolution in the world. Thus, the law governing a particular lifestyle in order that men and societies meet their needs in a real world that takes shape and materializes through experience.
Subsequently, legal realism was developed in schools, both U.S. and Scandinavia, with its own profile, as we have seen. These were strengthened and developed as a result of axiological problem that created the "Pure Theory of Law" made by Kelsen. Unfortunately, he was the victim of his own theory when he had to flee the Nazis not to die as a result of laws of the Third Reich, sternly applied, ignoring or disregarding the feelings of humanity and justice concept advocated his own theory.
6. Neo-humanistic natural law or natural law, which rescues and "receptionist" the best of previous calls from mid-twentieth century, after the terrible experience with Nazi legal positivism, the supremacy of the human being as an end and not as a means , so the law, state, and so on., shall be at your service, as envisaged by Kant in the past, leading to compliance, enforcement and respect for human rights, ethical principles and moral solidarity or autotelia the words of renowned legal philosopher and jurist Francisco Miró Quesada compatriot Cantuarias (Lima. b. 1918), distinguished professor of the Universidad Nacional Mayor de San Marcos (San Marcos).
Miró Quesada says that "the legal system of a nation is but a set of laws that their people have created to perform certain purposes (...) The worthy man feels that the violation of their right, is the violation of law of all. And that sentiment rises to the ideal of justice. " Hence, we affirm that it is the beginning of a human, social, against the rampant law positivist, formalist, oblivious to the human and social sense.
In this vein, to define the overlap, overlap or receipt and continuity made legal positivism legal empiricism. Indeed, in our view, legal positivism empiricism was an evolution of law in the nineteenth century, no doubt, contributed new approaches, both very good and very bad for the law in the twentieth century.
In fact, let's start by the negative results, which have only been classified as such after having been seen and experienced. For example, the application of the law and the law in its pure form the concept and trial are definitely fixed, the lawyer, repeating, mutatis mutandis, the Latin for "Dura lex, sed lex," ie " the law is hard, but it is the law, "or the German" Gesetz ist Gesetz "which means" the law is the law ", as stated, first, Von Savigny (1779-1861), then defended by Attorney Julius Hermann von Kirchmann Berlin (1802-1884), although he criticized the scientific positive first wanted to give the law, supported, right or wrong in social positivism of Comte (1798-1857), as already noted .
other words less words, the thought of Von Savigny, was revised, expanded, redesigned and updated by Kelsen, who ended up being a victim of the "hard" Nazi laws, because he was Jewish, which forced him to emigrate to the United States before ending his days in Auschwitz or other concentration camp or among the human remains of the Holocaust.
Something else. The height of legal positivism came when the Nazis laid hands on him for his defense in the famous Nuremberg trials (1945-1949), who claimed that their acts had been perfectly legal at the time of its completion (positive law: law force) as they were not penalized (criminalized) and did not state a penalty for committing the same (principle of legality), as we have argued on previous occasions. (1)
Finally, consider the contributions positive. These translate into the desire to ascertain the scientific nature of law, the acceptance and development of schools that were generated within the legal empiricism, and that mentioned above. Among them, the History of Law, Comparative Law, Law Theory, etc.
Historical School of Law is true that this school was the one who conceived and developed the history of law, which, today, no doubt, is recognized by the scientific community as a social science. Privileged status in the world of empirical science or specific calls, as Spencer called them. Among them are science nature and science in society and in the latter group comprises sociology, history, anthropology, archeology, political science, linguistics, economics, etc.
Well, the History of Law in its capacity as science provided its scientific nature, as well as comparative law, so that the law should be recognized as "normative science." I argue that, in honor of the legal and historical truth, was held in Peru, the Peruvian epistemologist Elguera Julio César Sanz, Ph.D., distinguished professor and director of San Marcos University Graduate School of the same university who died prematurely unfortunately for our scientific community. Sanz
Elguera-who was our dear teacher and deeply regret the irreparable loss, "said the law is a science of society and thus placed it in his classification, (2) contrary to what the epistemologist Mario Augusto Bunge Argentina (Buenos Aires, n. 1919), also our teacher and friend, that the law is a social scientific or technical socio-scientific technique at the service of man, is based on science, although it is not science, and it is not because it seeks the truth, which is the raison d'être of science (3).
Results This situation definitely recognizes that the history of law is a social science and the law is a normative social science, well beyond the "romantic history" of this school. Indeed, the origin corresponds to German Romanticism developed brilliantly by the philosopher Friedrich Schelling Germany (1775-1854), who favored the creation and aesthetic character. For him, style is the highest form of knowledge and recognition of the whole. In other words, it is the individual man to society, the people, namely, the subjugation of the whole.
In this vein, the German empiricists who adhered to empiricism English developed and propagated by Locke, Berkeley and Hume, saw a wonderful opportunity to demonstrate that the German folk spirit (Volksgeist) is a product of experience and is also acquired by it, which undoubtedly was encouraged by the nation and German Empire.
Thus, the society (nation) is a reality that manifests popular spirit in recorded history, which is and must be collective, the people, social, not individual, considering that man so he has no one-man domain of social organization (society). It is therefore an edge and charm of German nationalism incubated since the creation of the Holy Roman Empire by King Otto I the Great, in 976 AD, and developed until 1806, when Emperor Francis II of Austria, which was terminated before Napoleon Bonaparte Swirl, Emperor of France. This is what I know as Reich. Next will come the II (1876-1918) and III (1933-1945), always under the inspiration of "Volksgeist" with the dire consequences of the I (1914-1918) and II (1939-1945) World Wars, caused by unhealthy obsession of a superior German spirit, unfortunately, led by ailing minds.
other words less words, the exaltation of German folk spirit (Volksgeist) was collected and disseminated by the illustrious Roman-Germanic jurist Gustav Hugo (1764-1844), professor at the universities of Heidelberg Göttig and who greatly influenced the thinking of students, especially, Karl Friedrich Eichhorm (1781-1854) and Georg Friedrich Puchta (1798-1846). These were ordered to do so in force in Germany at that time, resulted mainly in the "vices" of "ethnocentrism and legal historicism." Not being a student of Hugo, professor of Roman law, Friedrich Karl von Savigny (1779-1861), joined the crusade and soon after the movement led legal positivist historicist, taking as a starting point Comtean social positivism, as we have already pointed
Well, in this context is that Von Savigny created legal positivism and the Historical School of Law. He and his followers claimed that the law is a product of social and historical evolution of the people who express popular spirit (Volksgeist) first in their habits (past, customary law) and then in their written policies that are collected by the legislature, who puts on condition of existing law, the current (positive law), so, mutatis mutandis, opposed to the codification of Napoleon, to the legislation, however, indirectly helped to Comparative Law, given that highlighted and interested by the existence of any and any legal, even while privileging the Roman law as a model and patron of the legal creation of man.
But in honor of the historical truth, Von Savigny did not know the existence of Sumerian legal system older than the 2000, boasting the Code of Hammurabi, dating from 1692 BC, perfectly finished writing. This finding in 1903, studied and analyzed places the Sumerian civilization and the creator of law and no doubt move to a second place to the Romans, given that the Hebrews, Egyptians, Phoenicians and Greeks "reception" and spread this right the same was received by the Romans to develop its unique Law of the Twelve Tables, dated 450 BC (Vid. Law No. 256 of 23.06.2009, the prominent young lawyer and historian of law, keycol E. Arévalo Silva).
certainly could draw a picture of the "monuments" archaic law on the basis of theories of knowledge both empirically Comtean taking by:
1. Theological, the Sumerian legal orders (Code of Hammurabi) and Hebrew (Tables of the Law), where man-king justified his actions in the divine mandate to subjugate other men.
2. Metaphysical, the Egyptian (Ancient laws Egyptian Maar Code and Book of the Dead) and Indian (Code of Manu), where the high priests create abstract ideas to explain the nature and its laws.
3. Positive, the Spartan and Athenian legal orders (Constitution of Lycurgus and Solon, respectively), Chinese (Great Rule of Chang and Code of Confucius) and Roman (Law of the Twelve Tables), where the man produces laws for other men outside the divinity and abstractions, looking rather objective criteria and indicators and where possible transhistorical universal validity. This, without denying, the existence of a higher reality which is the limit of knowledge is human and where, exactly, concludes or terminates the experience. "
In summary, the Historical School rejected both the rationalist natural law as a codification proposed earlier by the distinguished French lawyer Jean Domat (1625-1696) and Robert Joseph Pothier (1699-1772), to curb the disorderly collection or compilation of laws, I argue that, fortunately, was picked up first by Prussia to present its Civil Code in 1794. The second was France, with its Civil Code of 1804 or the Napoleonic Civil Code of 1804 "and, thirdly, Austria with the same corpus juris of 1811.
The historicist argued, then, that the coding stagnant development of the law by the synthesis and systematization placed on it, engage in stability and permanence, with the consequence that comes to sterilize the common law, customary law being the main source of new law, and, moreover, fossilize the popular mind (Volksgeist) and soul or tradition (heritage) of the people to generate their own rules through history, given that the law is human reason but on the experience of the people. Note, therefore, the marked influence empiricist.
For this position and use of big words laden with a deep and even skewed nationalism, this school was hard criticized, among others, by German lawyers and legal philosopher Heinrich Ahrens (1808-1874) and Eduard Gans (1887-1991). The latter was inspired by Anton Friedrich Justus Thibaut (1772-1840).
COMPARATIVE LAW
Comparison, certifying and establishment of the variety of legal systems in their peculiarities, or originality, without doubt, provides a better understanding and separately to each of them. Just as
Legal History, Comparative Law applies the empirical or scientific method to legal content being studied. Get him, of course, a plausible and even objective validity, however, by no means absolute, given the existence relativity of scientific knowledge. This outline was renewed and sustained by the philosopher and historian of American science Thomas Kuhn (Cincinnati 1922-Cambridge 1997), arguing the relativity of each scientific paradigm, and, well, the Austrian epistemologist Paul Feyerabend (Vienna 1924-1994) , asserting the incommensurability of knowing and known content.
other words less words, scientific truth applies, but is relative because it is not universal and infinite in time, but valid for a period of time, concepts, etc. That is, the truth becomes relative. Hence, Sanz Elguera, always told us and said as a slide show for one of our publications: "The fact that theories of positivism on the principle of verification, confirmation and falsification have been insufficient to resolve the epistemological problems raised in your environment does not mean, nor could mean that the truth science-that science does when he does, by the application of scientific method does not count when it comes to knowledge of reality. Truth is relative, not absolute, even for just facts. But the truth of particular propositions and general propositions is the most reliable, accurate and the most rigorous in the case of the facts and regularities. Not knowing this is plunged into the world of irrationality (4)
Historically, the first to write a rigorous formulation of Comparative Law, Paul was the German jurist Anselm Feuerbach (1755-1833). Then the French would take it to Eugene Lerminier (1803-1857) and Jean Jacques Foelix Gaspar (1791-1853). Later, the Italians with Amari Emeric (1810-1870), who followed guidelines of who preceded him nearly a century, Juan Bautista Vico (1668-1744). The English with Jeremy Bentham (1748-1832) and John Austin (1790-1859), were also in the same direction, etc. (5)
Indeed, to better understand the legal empiricism would necessary to note briefly some notes on the origin of empiricism, English philosophical movement of great importance and great development, a topic we will discuss another time.
-------- (1) DEL SOLAR, José Francisco. The Science of Law: the natural law to legal positivism. Rectorate Notebooks No. 17. Universidad Inca Garcilaso de la Vega. Presentation Linan Luis Cervantes. Joseph F. Epilogue Palomino Manchego. Lima. 2009. pp. 40-68.
(2) Elguero SANZ, Julio César. Introduction to Science. Amaru Editores. First edition. Lima. 1987. p. 120.
(3) BUNGE, Mario Augusto. I International Course: Term of Philosophy. University Inca Garcilaso de la Vega. Lima. 1996. (Conference of July 8, 1996).
(4) Elguero SANZ, Julio César. Introduction to the work of DEL SOLAR, José Francisco. The science of public relations (epistemological focus). Universidad Inca Garcilaso de la Vega. Graduate School. Lima. 1996. p. 3.
(5) SARFATTI, Mario. Introduction to the Study of Comparative Law. First Edition. 1945. Universidad Nacional Autonoma de Mexico (UNAM).
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