Law as a science

Interview with Prof Jan Schröder

September 26, 2023

‘Law as a science’ is the topic of a conference taking place here at the mpilhlt dedicated to Jan Schröder’s two-volume work of the same title. Before the event, we had the chance to speak to the author of the history of legal methodology from the late Middle Ages to the end of the 20th century about the concept of ‘science’, the Copernican Revolution in law and the state of ‘law as a science’ in the German-speaking world.

Professor Schröder, what are, in your opinion, the prerequisites such that law becomes a science? Put in another way, what is law if not a science?

The question isn’t so straightforward because there have been very different conceptions of science both past and present. If we look at the classical texts, then science requires at least a systematic examination of the objects (Kant) and, if we need to go beyond this, a knowledge tied to reasons (Aristotle). When it comes to legal doctrine, I think the Kantian minimal requirement has been met since the 16th century. Systematic – albeit greatly varying – representations were continuously being pursued over the course of time, always based on one's own conceptions, which in turn did not simply repeat what the law said. Aristotelian “reasons” complicates the situation. The fact that something is stated in the law cannot suffice as scientific justification. Such ‘reasons’ for legal propositions, however, are found in natural law and in the German Historical School. Justifications for the dogmatic insights are, of course, also provided by the expert interpretation of the legal sources.

With regards to legal theory (in particular, argumentation and interpretation theory), this standard has also been met throughout history. Justificatory attempts can be found above all in the German Historical School as well as in the general ‘romantic’ hermeneutics. Moreover, justifications can be found also for both statutory and customary law concepts, above all in constitutional law since the 19th century.

As an example of law that isn’t a science, i.e. is not dealt with in a scientific fashion, I would cite the local laws of the early Middle Ages and law books of the high Middle Ages. It is in this respect that the legal historians also speak of ‘unscholarly’ law. Having said that, a scholarly treatment of these rights began in the 13th and 14th centuries.

Your work offers a history of the juridical methodological doctrine from the late Middle Ages until the end of the 20th century. What do you regard as the decisive transformations? Was there anything akin to a ‘Copernican Revolution’?

The most important transformations, in my opinion, emerged from the changes of the conception of law in the mid-17th century, in the early 19th century, at the beginning of the 20th century and during the German dictatorships. For this reason, the two volumes mirror this structure.

Radical changes in legal thinking occurred in the transition from the ‘liberal-bourgeois’ legal theory to the German dictatorships in the 20th century. Yet these transformations, luckily, were short-lived and didn’t generate any widely accepted new insights. Rather, the new conception of law that took hold around the middle of the 17th century would more appropriately be characterised as a ‘Copernican Revolution’ (Thomas Hobbes’ catchphrase: ‘sed authoritas, non veritas, facit legem’). Little by little, it removes God from law and attributes a central role to the human law-maker and his (historical) will. This also shapes the legal methodological doctrine, in some cases, even down to specific details. Of course, this development of legal theory is but a small piece of an even greater transformation in scientific thinking in the 17th century, to which we owe, among other things, a new rational, experientially based natural science.  

How would you judge the state of ‘law as a science’ in the German-speaking world today, let’s say, in view of the increasing internationalisation of the sciences and blurring disciplinary boundaries?

It is obvious that the Europeanisation of law brings our legal theory into contact with legal orders that sometimes harbour considerably divergent methodological conceptions. This will certainly diminish the continuation of the specifically German tradition and has probably been influencing it for quite some time now.

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