Interdisciplinary Reflections on Legal Method
Edited by Sanne Taekema, Bart van Klink and Wouter de Been
Chapter 6: Legal doctrine is a non-normative discipline: An argument from abstract object theory
AbstractMany legal theorists claim that legal doctrine is a normative discipline. They argue that the aim of legal scholars is not only, or even primarily, to describe law, but rather to evaluate it. Moreover, the aim of legal scholars is to persuade legal officials to accept and, if possible, to apply their evaluative views and to adjust and improve law accordingly. Many of them argue that even descriptions of law are inherently evaluative. In this chapter, Mackor argues against these claims. She holds that the primary aim of legal doctrine is to offer a description of the positive legal order under investigation and that the second aim is not to (causally) explain and predict, but to offer a rational reconstruction of that order. This view of legal doctrine is not new. What is distinctive in her approach is, first, that she defends the view that both descriptions and rational reconstructive statements are truly descriptive in nature and, second, that she uses abstract object theory to defend her view.
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