(Posted in Law No. 321 of 09.21.2010)
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.
At the request of many readers develop this article on the origins of Empiricism ", given that Law No. 310 of 07.06.2010, we addressed the topic" Legal Empiricism. " The application is based on the first article discusses the second branch or specialization. Indeed, in our view, distorted or Moreover, denatured for its origin, since the law took empiricism own profiles according to the nations where you applied and developed, as we have seen.
However, we must make clear that, although the "empirical law" as such, its origin and development (story) - has not been properly worked to the extent it deserves, it is also true that on its variants There are plenty of foreign literature in the United States, England and the Netherlands. This generous situation occurs with "empiricism" as philosophical, in general. Indeed, on this subject abound books and articles in all languages and countries, however, many of them lack a legal approach as we intend to do now. History of Empiricism
In this context, the history of empiricism is very old and, no doubt, can be traced back to classical antiquity, mainly from Greece and Rome. Aspect, we repeat, is well covered in the books of philosophy and history of philosophy. Hence, only some aspects apostilled to complement the theme of "Legal Empiricism."
In particular, we, we are interested in English empiricism that is the product of the modern age, ranging from 1453 to 1789. Time of great voyages and discoveries geographical and scientific application of the greatest inventions (compass, improvement of gunpowder, paper and printing-the latter invented by the Chinese-), the rapid development of natural sciences in the late sixteenth and early seventeenth with the contributions of astronomers, mathematicians and physicists, as says the historian of science, a Russian national Koyré Alexandre (Tangarog, Russia 1892-Paris 1964).
In fact, Galileo Galilei (1564-1642) and Johannes Kepler (1571-1630) set out to test, separately, empirically, the physical reality of the heliocentric system proposed by Nicolaus Copernicus (1473-1543). He pulled to tear the old geocentric theory of antiquity, which was held by the Greek Hipparchus (130 BC) and the Egyptian Claudius Ptolemy (100-170 AD), and accepted by the ancient philosophers and Christian theologians until the seventeenth century. Here is a clear example of the relativity of scientific knowledge, the geocentric paradigm over the heliocentric paradigm, in the words of American philosopher and historian of science Thomas Kuhn (Cincinnati 1922-Cambridge 1997).
Despite these assertions, to address comprehensively the origin of empiricism, we must draw some lines from birth or creation. This goes along with the application inductive method, which, be said at once, was the one applied in ancient times to Aristotle (384-322 BC) and was favored in the Middle Ages with their blind dogmatism, however, happily restored in the Modern Age specifically in the Renaissance period by the English jurist and philosopher Francis Bacon (1561-1626), which, indeed, was a break with a return to Aristotle and Plato (428-347 BC), notes the English philosopher Bertrand Arthur William Russell (1872-1970).
ARISTOTLE AND THE INDUCTIVE METHOD
The inductive method (from the particular to general) it is through observation and experimentation. Was applied originally by Aristotle (384-322 BC, Aristotle called for his place of birth in Macedonia), in his studies of biology and also in the comparison of the 150 constitutions of the Greek nations who came to collect. Among them, Athens, issued by Solon (640-559 BC).
In the application of induction, Aristotle avoids-as much as possible, disposable assumptions, and only based on facts. Hence, writes bluntly: "It is easy to weave the hypothesis" (...) "Science should be based on reality, which is as close to the truth, because" one thing can be true in a sense and false in another ", hence the need to" try and test it well. "More," to observe and experience "to" prove. "
The process of testing a "proposal" involves the construction of arguments. However, identified three types of "propositions": 1. Universal ("All ..."; example:" All men are mortal ") 2. Particular ("Some ..."; example:" Some men are wise ") 3. Individual ("Socrates is ..."; example:" Peter is wise. "When we combine propositions in an argument, the individual should be treated as a proposition universal. The propositions are affirmative or negative, according to affirm or deny something of a subject.
Now, from one or more proposals and called "premises", we deduce other propositions which are followed or are a consequence of these premises. The fundamental type of every argument, according to Aristotle, is what he called "syllogism." A syllogism is an argument with two premises of subject-predicate with a term in common. This intermediate term disappears in the conclusion. Thus, all human beings are rational, children are human beings, therefore, children are rational beings. In this case, the conclusion is derived from premises, so the argument is valid. As for the truth or otherwise of the premises, that is another matter. What matters is to discover what syllogistic arguments are valid and which not. (1)
Specifically, inductivism was based on an Aristotelian syllogism, leading to the reasoning from the particular to the general. Example: "John likes philosophy, a philosophy like Walter, Pierre likes philosophy. John, Walter and Peter are teachers. Ergo, all teachers like philosophy. In sum, the major contribution of Aristotle was in formal logic. Of what was theirs to give a general explanation of how the arguments. In other words, for him was "an instrument of knowing and testing, a tool used as a method to the knowledge of any kind of reality, but is not itself a substance." Hence, Aristotle used the name of "organon" and not "logic" that "was invented later by the Stoics." (2) Aristotelian logic
Well, all this was reflected in a set of treatises by Aristotle were compiled by Andronicus of Rhodes, 200 years later, ie, in the s. BC Only in the Middle Ages in the s. V-this body of work was entitled to Organon (named after the ancient Greek meaning "instrument", "method" and that Aristotle frequently used). Indeed, it was the most significant of Aristotelian work became an "academic discipline able to analyze arguments and determine their validity by the formal rules of syllogism."
The logic was instrumental in the Trivium, ie all the three disciplines: grammar, logic and rhetoric. In other words, the three basic ways of teaching ancient and medieval to ensure success in the Quadrivium, where they taught the four essences knowledge or science: arithmetic, Astronomy, Geometry and Music. LEGAL LOGIC
Sea should be noted at once. The logic was introduced, and is still in force, as a technique of argumentation in judicial activity. All claim interpretation argument, however, in the field of law enforcement this interpretation has to be translated into a decision to be autonomous and independent of political pressures, economic and social. The correct position was subject to criticism and attacks by those who felt that the judge should only be limited to a literal interpretation of the law, that is, to say, without further arguments or additional trials that could generate a new right. Moreover, there were those who thought that the interpretation was to be strictly (mathematically) literal and always upholding and defending the sovereignty of the kingdom, namely, supporting the king.
In the first position was, for example, the illustrious and great English judge Edward Coke (1552-1634), who, even faced the King James I of England (James Charles Stuart or James Charles Stuart, 1566-1625) for enforce the rights of the monarch's will. His tenacious opponent was Francis Bacon (1561-1626), to support the thesis that the "role of judges is jus to say and not jus dare, interpret the law, not make law or to the right." (3)
Unfortunately, the latter view won the day and was endorsed by lawyers as the theologian Irish empiricist George Berkeley (1685-1753) and the philosopher David Hume (1711-1776). Indeed, the Irish lawyer said: "The law itself is an old and faithful servant of the king is the instrument or means used to govern his people. I've never read or heard that rex is lex, but is most common and most true that rex is lex. "
Following this order of ideas, this biased theory was also assumed by the French political and legal philosopher Baron de Monstesquieu and Braden, Charles-Louis de Secondat (1689-1755), who noted that "the court is only the mouth that pronounces the word of the law." Later and gradually, she will join seamlessly and German lawyers Julius Hermann von Kirchmann (1802-1884), Ernst Zitelman (1852-1923) and Hans Kelsen (1881-1973), and also the Italian Francesco Carnelutti (1879 -1965). Without doubt, this is the most rancid iuspositivism. (4)
But fortunately, there were also other no less distinguished legal philosopher that supported and defended, and there are still those who do, the theory that the judge must interpret the text of the law , argue, and to fill gaps or deficiencies in the law, legislating through case law.
On this side of the edge of legality are German lawyers Friedrich Karl von Savigny (1779-1861), who despite being the father of legal positivism held that the law (the law) is a product of popular spirit (Volksgeist ), ie the people, which is, he says, the true and authentic legislature. For this reason, we say without euphemism, the "Historical School of Law, founded by him, he strongly opposed the Parliament's legislative function without knowing and valuing the customs and standards developed by the people. Issue that we have developed in the article on the "legal empiricism." Along the same lines, Von Savigny rejected the coding rules of the States (Civil Codes of Prussia, 1794; de France 1804, and Austria 1811), which, consciously or unconsciously, helped to promote comparative law, given that Embossed put any and all law, but noted as historical model to keep in mind, Roman law, as the Italian jurist said Francesco Messineo (Calabria 1886 -?).
Well, if the proposition of Von Savigny was attacked by Von Kirschmann, corresponded to another famous German jurist radically opposed to both. It was Rudolf von Ihering (1818-1892), who defended the theory of the social function of law outside the supported logical formalism "blindly" by positivists and conceptualist. Moreover, his disciple and fellow Hermann Kantorowicz (1877-1940), who, prima facie, learned law in the books of the first two, then turned and joined his master Von Ihering, stressing that he could interpret and judge would argue, to fill voids or gaps (Metabasis) of the Act, and, indeed, go so far as to decide against the absolutism of her (contrarius legem). The same position was the German jurist Gustav Radbruch (1878-1949), etc. Among the contemporary Peruvian jurists follow this trend, we can mention the renowned litigators John Federico Monroy Galvez (Pisco, Ica, n. 1950), who demand a constitutional provision empowering the court to interpret to stop being a mere letter of the law applicator, that is, to us, a mere and simple law operator. (Vid. Law No. 308 of 22.06.2010). (5) Also, on the other hand, Kantorowicz said the scientific nature of law as a "cultural-egological science" with its own method: the empiricism- dialectical. "
Finally, something that should fill us with pride. The legal philosopher Francisco Miró Quesada Cantuarias Peru (Lima, b. 1918) has created a systematic theory of legal interpretation, which called interpretandi Ratio ", and the particular has written an essay on legal interpretation, being the" deductive method or logic "one of the fundamentals of it. This is used to solve the problems of the antífasis (contradiction law) and to determine the meaning of one or more rules, and deductively (from general to particular). This is obviously contrary to the induction (6).
But back to the Aristotelian induction. A prima facie case, she was adopted by the scientific development of the late sixteenth century, pushed, in principle by empiricism, however, the reforms that boosted its promoter primitive at the start of the seventeenth century. We speak English jurist and philosopher Francis Bacon. No doubt this was the birth of "physical positivism," which later turned to scientific positivism. In other words, was the review and reformulation of the Aristotelian syllogism posed by Bacon, who sued and proposed a new method or instrument of discovery that will replace it, but always based on the induction or, rather, "a new version of the induction. "
In this vein, Francis Bacon was convinced that the Aristotelian induction had been a drag on scientific development. Hence, set out to demonstrate his approach. Regard, Russell, said: "Historically, Aristotle's influence has been more obstructive, mainly due to the lavish and blind dogmatism of many of his followers." (7)
FRANCIS BACON (1561-1626)
Indeed, the history of empiricism is found in Bacon, whom we call "scientific counsel, not because they devoted to study and the scientific support of the law but, instead, devoted all his scientific concerns the testing of physical phenomena . For him, practice of law was only a way of life. His happiest moments were spent experiencing physical phenomena, hence it is the precursor of empiricism.
Bacon should be clarified that belonged to the generation of the late sixteenth and early seventeenth century and was an outspoken political foe of authoritarianism, therefore, a supporter of the nascent British liberalism, which advocated the change of political order estates up prevailing in the Middle Ages by the representative of the new constitution, which came along with the modern age. It was, therefore, the triumph of "constitutional monarchy" in the words of the distinguished jurist and political scientist English Manuel García Pelayo (Zamora 1909-Venezuela 1991).
In this vein, Bacon was not content just to observe, experiment and test, but also, always comparing their experiments, the facts and reality. Therefore, without fear of any mistake can be considered as one of the first comparatists in England. Indeed, comparing the legal systems of justice advocated the creation of a universal, equal for all men without distinction of classes and nations. Hence, it was a regular attendance at the taverns where they met the operative masonry, being perhaps one of the first members not contributing beds to sow the seeds of new speculative Freemasonry, which erupted in 1717, under the banners of freedom, equality and universal brotherhood of men.
Indeed, Bacon was one of the enthusiastic developers to adopt in England thought "esoteric", which, moreover, who came to practice were grouped into "secret societies" and met in "privacy" as says the renowned English historian Frances Amelia Yates (1899-1981), who has studied deeply esoteric and hidden aspects of the Renaissance in England. Similarly, Francis also was a noted exponent of thought "Rosicrucian" and his ideas to build an idealized society were found on the paragraphs in his book The New Atlantis, (8) published in 1626, utopia based on human brotherhood and inspired by the story told by the Athenian philosopher Plato (Aristocles Aristides, 428-347 BC) in his dialogues Timaeus and Critias. There is no doubt that this is a sign of his admiration for the philosopher and his rejection of Aristotelian rationalism.
Francis Bacon was first Verulamd Baron and Viscount St. Albans. He studied law at Gray Bar in London. He was attorney general in 1607, treasurer of the kingdom in 1613, Privy Councillor in 1616 and chancellor of kingdom in 1618. At one point in his political life and jurist (1621) was charged with bribery and malfeasance, for which she was imprisoned in the Tower of London.
Bacon retired from public life and devoted himself to philosophy, to experience and write their essays. Experiment was conducted as happened to the last day of his life. Indeed, it was an innate scientific advocated freedom from theology and Aristotelian logic, given that both led to confusion. Therefore, the rejected. Hence the expression that became a methodological dictum: "Truth emerges more readily from error than from confusion." (9)
Finally, Francis Bacon believed that only came to the truth by experiment and inductive reasoning (from the particular to general). Wanted to create an "experimental philosophy" that is, a "New Organon" and that reflected in his two books titled scientiarum Novum Organum (1620), which are an essential part of his major work Instauratio Magna. Bacon's work and rejected the Aristotelianism greatly influenced John Locke.
JOHN LOCKE (1632-1704)
was the founder and promoter of empiricism. Like Bacon, born in England, six years after his death. Belonged to a Puritan family, advocate parliamentarism. His father worked as a rural lawyer and joined Parliament's army to fight against the tyrannical King Charles I (1600-1649), defeated and beheaded in 1649.
Locke was educated at Westminster School and Oxford University. After completing his studies scholastics became professor of Greek, ethics and philosophy at Christ Church, Oxford. Then he became interested in experimental science embracing medicine. He stressed it quickly, as in the knowledge of philosophers and physicians, both Greeks and Romans. Indeed, had full mastery of knowledge and theories of Aristotle, Cicero, Hippocrates and Aesculapius etc. Moreover, the overwhelming sympathy and commitment he had for Francis Bacon. In the salons of London, they talked endlessly about this new young humanist.
a young man experienced the heat of the English Civil War, the same one that exploded in 1647, against King Charles I Stuart (1600-1649), led by Oliver Cromwell (1599-1658), who took office with the office of Lord Protector and created the republic. This monarch, son of King James I, was executed by the people and Parliament, two years later, in 1649. Shortly after Cromwell's death in 1660, was restored the monarchy and assumed the throne Charles II Stuart (1630-1685), son of the murdered king.
was in this new era in which Locke, aged 28, was called by the Lord Hashley, first Earl of Shafterbury, who appointed him as his secretary. Moreover, debuted in the battles policies when he was appointed by his patron in the office of secretary of the Council of Commerce and Agriculture. Charles II, had established an excellent policy of coexistence with the parliament, and letting it rule over the kingdom. Realized that the father's pride and stubbornness were the best ways to keep the monarchy. Moreover, there was an absolute monarchy in England actually curdled.
John Locke, both by his family as by the influence of Bacon, was an ardent parliamentarian, bent on religious tolerance. Like his employer Lord Hashley, joined the stream of moderate aristocrats. But unfortunately, the bigots have won positions, and the Lord Chancellor Hashley was accused of treason by King Charles II Stuart, so he had to take refuge in Holland. Same fate befell the young newcomer in politics, but with a different destination. Let's see.
By not feel safe in London, Locke fled to Paris in 1675. Befriended the English chemist and scientist Robert Boyle (Ireland 1627-London 1691). Advantage of self-imposed exile to write and finish some projects. He then returned to England and was forced back to flee. This time it did to the Netherlands. In Amsterdam, John Locke knew and was related to William of Orange (The Hague 1650-London 1702), later king of England and big winner of the English Glorious Revolution of 1688.
Charles II Stuart died in 1685 and had succeeded his brother James II Stuart (1633-1701), who was deposed precisely in 1688 and with his defeated troops, called Jacobites, came to France, taking with them the principles, ideals Masonic and operational experience, leading to the creation of the Scottish Rite (red) to differentiate it from York (blue) that had been consolidated in the island. Hence, the first lodge created in France dating from 03.25.1689, taking into account that James II Stuart was dismissed on 11.12.1688.
However, in honor of the historical truth we must be honest in recognizing that "much evidence related to the Freemasons between 1689 and 1745 were lost, intentionally or otherwise, in the heat of events." This happened, mainly with Scottish Freemasonry, for the reason indicated above. (10)
Well, John was the great philosopher of the parliamentary and popular movement, which created, no doubt, a new civil society in England, leading the ideals liberal and intellectual revolution with the new symbolic Freemasonry (1717), both the European and the American continent. By then, the great achievements of the "Invisible College", with its lights, Locke, Boyle, etc., Had already been made by the "Royal Society" (The Royal Society of London), established in 1660, supported King Charles II Stuart. It is important to remember that this school, indeed, remained "invisible" for many years, and was the crucible of brothers breast and Rosicrucians and Freemasons "operative" who sought the study, meditation and development of human beings. Without a doubt, one of the primal pillars of speculative or symbolic Freemasonry was formally constituted on 6/24/1717. Historical theme of singular value to avoid formal historians investigate and treat, with few exceptions, such as the British historian Yates.
Locke retired from public life in 1691, to Oates in Essex. He kept experimenting, formulating new theories and writing. He died in 1704, happy to have eliminated the political authoritarianism, religious and civil, and having established the first modern liberal state model, consisting of the brake balance of Parliament over the king. There is no doubt that the father of empiricism gained a great influence on the thinking and actions of the Anglo-Saxon world, resulting in later legal empiricism. His major work was entitled Essay on Human Understanding published in 1690. A year earlier published Two Treatises on Civil Government (1689). No doubt there are many works that have been scattered. BACON AND LOCKE
The scientific interest in joining these two great minds English. So much so that John is focused on ideas and experiences that Francis had made in this field, half a century earlier.
Something else is also noteworthy that the concept of experience is complex, however, to make it more concrete, we believe that Locke began with the idea that the system of empiricism had to reject all rational knowledge, Also, ideas or knowledge innate in human beings, who can only learn exclusively by the experience.
In this vein, he said, bluntly, that the human being is born with the mind pure, like a "blank sheet" and that he in his development experience within the company is acquiring knowledge Little by little, the mature. Fewer words words, I propose that man is born good and society corrupts him and spoiled, so it is a defender of the state of nature. In this sense, was more radical than Bacon.
certainly believe that the original ideas of empiricism of Locke received the work Novum Organum scientiarum (1620) by Bacon, which systematized in his own essay entitled An Enssay on Human Understanding. In this context, this doctrine was developed with the name "English empiricism", having great acceptance in the scientific community then, obviously with critics and detractors. Empiricism
LEGAL BASIS OF
Undoubtedly, the history of legal empiricism is the philosophy of Locke, who in the field of legality held and defended his position of "natural state of freedom and equality of men."
In fact, John, ran: "man, as we have shown already born with a title to perfect freedom and enjoyment Unlimited all rights and privileges of natural law. It has, therefore, by nature, like any other man or any number of men who are in the world, not only the power to defend their property, ie life, liberty and property against the abuses and connections of others, has also the power to punish and prosecute breaches of the law committed by others, to the extent that his conviction deserves the crime committed, and may even punish with death, when heinous of crimes requires, in his opinion. "Hence their criticism and rejection of its previous proposals of compatriot and philosopher Thomas Hobbes (1588-1679), supporter of the authoritarian monarchy.
The empiricist Locke conceives of freedom as a practical and material value, enjoyment and experience, therefore, certainly not as an abstract value. In this context, consider that freedom is complemented by equal and vice versa as well. Something else, on the one hand, freedom and equality are regarded as property of men, like material goods. And, on the other hand, liberalism is an experienced response against the absolute monarchy lived, felt and rejected by society, which starts in the family, which is the first social contract that comes with marriage between a man and woman and extends then the children, as envisaged by the Macedonian philosopher Aristotle (384-322 BC) and endorsed the German jurist and legal philosopher Heinrich Ahrens (1808-1874), holding that the first legal order created by man was the family law. -----
(1) Russell, Bertrand. Wisdom of the West. Translated by Juan Garcia-Puente. Aguilar. Second Edition. Madrid. 1975. p. 81 et seq.
(2) Ibid. p. 85.
(3) Garcia-Pelayo, Manuel. Comparative constitutional law. Manuals Revista de Occidente. Seventh Edition. Madrid. 1964. p. 263 (García-Pelayo himself quoted BACON: Essays Civil and Moral (1597-1625). London. 1914. LVI. P. 85).
(4) THE SOLAR ROJAS, Francisco José. The Science of Law: Of natural law to legal positivism. Rectorate Notebooks No. 17, UIGV. Lima. 2009. pp. 40-76.
(5) MONROY GALVEZ, Juan F. To "my other heart," Law, Process and other troubles. 2 volumes. Edit. Communitas. Lima. 2010. p. 63.
(6) Cantuarias Miro Quesada, Francisco. Interpretandi ratio, test of legal hermeneutics. UIGV. Editorial Fund. Lima. 2000. p. 164.
(7) RUSSELL, Bertrand. Op cit. p.
81 (8) Baigent, Michael and Leigh, Richard. Masons and Templars. mr-editions. Metro Madrid Ediciones SA 2009. p. 159, 162 and 219.
(9) BACON, Francis. Novum Organum. Ed J. Spedding. RL Ellis and DD Heath. New York. 1869. Reissue 1969. p. 210.
(10) Baigent, Michael and Leigh, Richard. Op. p. 200.
