Chapter 6: The relationship between the official and unofficial portraits (2)
We have seen that despite the authority paradigm there are many opportunities in the reasoning process for judges to give expression to their own ‘hunches’, if not their own prejudices. The official portrait does not like to admit these opportunities – indeed the idea of judicial discretion is in the civil law systems something to be suppressed as much as possible – and a theorist like Ronald Dworkin has argued that the good judge does not use his or her discretion. But given the possibilities for ‘hunches’, what might a researcher operating under an inquiry paradigm make of legal reasoning? Before one can tackle this question something first needs to be said about the inquiry paradigm. Recognising a distinction between the inquiry and authority paradigms is not to suggest that all doctrinal legal scholarship lacks completely a spirit of inquiry. The issue is one of epistemological scope and validity. In the natural sciences a hypothesis such as ‘the dinosaurs were wiped out by a gigantic meteorite’ is open to falsification. Someone might establish that this was not the cause of their disappearance. The objective facts will largely determine, in the end, the knowledge value of the hypothesis. Put another way, the hypothesis is validated by correspondence with an external object, which in turn will determine the ‘truth’ value of the hypothesis. It is either right or wrong. There is, however, one science which cannot be validated by an external object, namely mathematics.
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