What Legal Scholarship is About
Chapter 4: Legal knowledge and legal doctrine: validity of law
I have been investigating how the binding character of law could be accounted for, and what follows from that with regard to the specific way in which law comes into being and is sustained, namely by authoritative decision-making, enforced by sovereign power. All this I called the positive character of law. Now I want to embark on a second mode of appearance of positive law in modern society, namely as an object of theoretical knowledge. I would like to ask what follows from the account given above for what we mean by knowledge of positive law? This question evolves directly from the previous chapter, where I mounted the argument that law itself is a mode of knowledge, namely practical knowledge as exhibited by authority. I pointed out that such ‘knowing how’ with regard to ending or precluding major conflict in society is not necessarily explicit. It may also remain (partly) implicit, tacit, and embodied in those who take authoritative decisions. But then I argued that law has several ways to enhance its authority. One of them is precisely by posing as an object of theoretical, in particular scholarly, knowledge. Rather than being dependent merely on the sovereign status of the agent(s) making law, it may sustain its claim by seeing to it that it can be described, explained, and predicted. There are at least two reasons why this enhances authority. One is an argument from effectiveness: if law can be known, its norms can be interiorised by legal subjects, so that they can consider complying with it without authoritative intervention.
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