The Scientificity Of Legal Dogmatics

The issue of the scientificity of legal dogmatics is a long-standing issue of philosophy of law.Around the issues of "whether dogmatics of law is a science","if so,what kind of science" and "what is scientificity",there are long-standing debates in different times,regions and societies.Dogmatics of law is a practical subject of legal interpretation(understanding)and application(preparing for justice).Scientificity is the quality of science.Science is a kind of "model(high-end)knowledge" higher than common sense and experience.Therefore,scientificity is the quality of model(high-end)knowledge.There are two different fields of scientificity: "broad sense science" and "narrow sense science"(natural science).The understanding of scientificity should not be limited to the narrow sense science(natural science),but should be understood in a broader sense.As long as it has the characteristics of model knowledge,it should be called science.In this sense,the knowledge of philosophy and other humanities and social sciences can be called science.The scientificity of legal dogmatism runs through the whole history of the development of modern and contemporary legal philosophy and legal theory since the19 th century.Different scientific standpoints(scientific views)have different understandings of the scientificity of legal dogmatism.Generally speaking,there is a cognitive process from "affirmation" to "Negation" and then to "affirmation" about the issue of "scientificity of dogmatics of law".The "system science view" from German classical philosophy affirms the scientificity of dogmatics of law."Historical jurisprudence" and "conceptual jurisprudence",which are deeply influenced by the scientific view of "system",are committed to the conceptualization and logical system construction of jurisprudence.Historical jurisprudence holds that dogmatics of law is a "historical science",while conceptual jurisprudence holds that dogmatics of law is a "formal science".Jurist Yelin holds that science must exist in dogmatics of law.The philosophy of positivism,which was born in 1830's,has a profound influence on the view of science.The view of positivism,which is formed from this,holds a negative attitude towards the scientificity of dogmatics of law.Kirchman,the prosecutor of Berlin,criticized the scientificity of dogmatics of law.He thought that dogmatics of law as a science was worthless.The "liberal law"(the movement of Sociology of law)with the standpoint of positive science thought that dogmatics of law was not a science.The "pure law" with the standpoint of logical positivism also denied the scientificity of dogmatics of law.At the beginning of the 20 th century,the philosophical trend against positivism began to rise,and philosophy began to turn to axiology.Under the influence of Neo Kantism and other philosophical trends,"interest" and "value" returned to the field of science.Interest jurisprudence thought that law dogmatics was an "Applied Science",while Neo Kantism jurisprudence thought that law dogmatics should be a "cultural science".After World War II,with the revival of natural law,the objectification and generalization of the cognition of "value" and "justice" made "value science" on the stage of history.From the perspective of value science,"evaluation law" thinks that law dogmatics is a "science of value evaluation".Under the influence of "evaluation law",contemporary dogmatics of law,on the premise of maintaining and defending the "legal order" established by positive law norms,has been open,reflective and critical,and has scientific methodology.It is in this sense that the jurist Larenz fully affirmed the scientificity of dogmatics of law: that is,dogmatics of law as science is indispensable.Other contemporary legal theories with scientific values also agree with the scientificity of dogmatics of law: Gadamer's "legal hermeneutics" theory,Habermas' s "consensus theory" of truth and Alexis' s "legal argumentation theory" all affirm the scientificity of dogmatics of law to varying degrees.Although the three scientific views of "system science","positive science" and "value science" have different understandings of the disciplinary nature of legal doctrine,they are all reasonable according to their respective scientific positions.It can be said that the three views of science all describe a part of scientific truth.The system view of science attaches importance to the form of knowledge,the empirical view of science attaches importance to the method of knowledge,and the value view of science attaches importance to the essence of knowledge.Therefore,only by synthesizing the three scientific views through the dialectical understanding of "positive and negative",can we completely explain the connotation of the disciplinary nature of law doctrine.According to the standard of "science in a broad sense",dogmatics of law is a science.Its scientificity has three meanings: objectivity,testability and systematic.Specifically,the objectivity of dogmatics of law can be understood from three dimensions of ontology,epistemology and axiology.Among them,the consensus of axiology is the key to understand the objectivity of dogmatics of law.Due to the lack of self-evident knowledge of dogmatics of law,the certainty(correctness)of knowledge must be obtained through the "test" of "norm","demonstration" and "case";influenced by the idea that "systematization" is equal to "scientificity",dogmatics of law not only focuses on the construction of "conceptual norm system"(external system),but also attaches importance to the construction of "legal norm system" The system of "interpretation" and "value judgment"(internal system).In a word,dogmatics of law can neither be expressed and regulated completely by logical deduction and mathematical operation as natural science does,nor can it be completely the understanding of "unconstrained" law and the statement of "arbitrary willfulness" of judges.Dogmatics of law is a practical science about the understanding and application of law,which has "objectivity" because of the "consensus" of value evaluation,Because of the scientific methodology,it obtains "testability",and because of the consistency and unity of concepts,norms and principles,it obtains "systematic".Therefore,dogmatics of law is scientific.