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The Scientific Nature of Law Erik W. CHINIARA Student ID – 260524932 THE SCIENTIFIC NATURE OF LAW LLM Thesis – McGill University Faculty of Law, Montreal Under the supervision of Prof. Tina Piper August 2020 A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of the LLM in General Law (Thesis) program 2018-2019 ©Erik W. CHINIARA – 2020 ABSTRACT This thesis is structured around the famous question What is law? that legal scholars have been trying to answer for centuries. I start with an assumption that law is a science, similar to mathematics. The purpose of my work is to analyze from a theoretical and philosophical standpoint but also to observe from a methodological and practical angle the scientificity of law. This thesis should be read and approached by engaging with the law as a concept that is structured, reflected upon, understood and practiced scientifically. RÉSUMÉ Cette thèse s'articule autour de la fameuse question Qu’est-ce que le droit ? auquel les juristes tentent de répondre depuis des siècles. Je pars du principe que le droit est une science, similaire aux mathématiques. Le but de cette thèse est d’analyser d’un point de vue théorique et philosophique, mais aussi d’observer sous un angle méthodologique et pratique la scientificité du droit. Cette thèse doit être lue et abordée en regardant le droit comme un concept structuré, réfléchi, compris et mis en pratique de manière scientifique. 2 “The science of law, by achieving a complete, uninterrupted account of its chosen phenomena, would succeed in doing what the physical sciences in their field had already done. A legal science acting in this way would have to systematize not only present and past forms but all possible forms. Just as to astronomers the movement of a new comet represents only one of the possibilities which they have already forecast, so every new social phenomenon must be viewed as the realization of a predicted possibility. This does not mean that legal science will set itself up as the eternal oracle of all history, although it includes in its system all social forms, even those whose emergence must await the most distant epochs. On the contrary, it is not concerned with the content of the predicted phenomena but only with the forms which make the phenomena social.” William Ebenstein, Pure Theory of Law (South Hackensack, N.J.: Rothman Reprints., 1969) at 52 3 ACKNOWLEDGMENTS l would like to express my sincere appreciation and gratitude to all those who helped make this thesis possible. I would like to thank, in particular, my supervisor, Prof. Tina Piper, for her patience, guidance, encouragement and very constructive feedback and advice provided throughout the process. I would also like to salute McGill University - Faculty of Law, my professors and peers for giving me the opportunity to express myself on a topic that remains pretty controversial among jurists. 4 TABLE OF CONTENTS Page Abstract ……………………………………………………………………………………………………………………………… 2 Acknowledgments ……………………………………………………………………………………………………………………………… 4 Introduction ……………………………………………………………………………………………………………………………… 7 Chapter 1 – Can law be a science? A conversation with our predecessors ……………………………………………………………………………………………………………………………… 15 a/ What is law, the unanswerable question? ……………………………………………………………………………………………………………………………… 15 b/ To define or not to define? ……………………………………………………………………………………………………………………………… 27 c/ A multitude of approaches ……………………………………………………………………………………………………………………………… 29 d/ Is law a science? ……………………………………………………………………………………………………………………………… 50 e/ Visual representation ……………………………………………………………………………………………………………………………… 53 Chapter 2- The scientific practices and processes of law: a deterministic exercise ……………………………………………………………………………………………………………………………… 54 a/ The scientific teaching of law ……………………………………………………………………………………………………………………………… 54 5 b/ The law: a scientific process ……………………………………………………………………………………………………………………………… 71 c/ Visual representation ……………………………………………………………………………………………………………………………… 86 Chapter 3 – If law is a science, then jurists are scientists ……………………………………………………………………………………………………………………………… 87 a/ The quest for truth ……………………………………………………………………………………………………………………………… 87 b/ The legal ecosystem ……………………………………………………………………………………………………………………………… 93 c/ Lawyers and mathematicians, same thing? ……………………………………………………………………………………………………………………………… 98 d/ “Legal algorithms”: a tangible example of law’s scientific nature ………………………………………………………………………………………………………………………………... 107 e/ Visual representation ……………………………………………………………………………………………………………………………… 112 Conclusion ……………………………………………………………………………………………………………………………… 113 Final figure - the scientific nature of law ……………………………………………………………………………………………………………………………… 116 Bibliography ……………………………………………………………………………………………………………………………… 117 6 INTRODUCTION “The law is reason free from passion” said Aristotle. This quote is commonly used to introduce the study of law to first-year law students. For my introductory course in law school, titled: Law in a World of Multiple Legal Orders, the professor started the first class saying the following: “The first session will focus on a very simple question: What is law?” At that very second, as we were starting to take notes, it seemed like a fairly easy question, to which our professor would undoubtedly have a simple response. A single definition, we could then use as a baseline, throughout this course, throughout our legal education and probably for the rest or our legal careers. I went to law school and on my first day expected to leave the classroom knowing, at least superficially, what law is. Never had I been so wrong in my entire life… It’s at this second, when the professor asked that simple question What is law? that the premise for this thesis all started. We’re talking about ten years ago… And it is only now that I’m finally getting the chance to put it all on paper. The professor went on for over an hour giving the class a multitude of definitions of the term law, comparing different legal systems and jurisdictions, talking about the sources and the practices of law, and referring to a number of legal thinkers and philosophers. For a simple question, the answer was pretty confusing. For some reason, he insisted on describing law in French, although 7 our course was entirely in English, and the professor was a native from Toronto. “Law in French is le droit but it can also mean la loi, which translates into statute.” I now understand, and hopefully you will too, after reading my thesis, why his transition to French was so vital in helping me build my understanding of what law is. He also raised a number of sub-questions, as if the class wasn’t already confused enough… “What forms can law take” he asked. A question to which not a soul in the class even attempted to answer. After almost two hours of taking notes, without really knowing what the professor was trying to convey, he concluded this first session by saying: “I’m afraid I am going to be very disappointing today, because I cannot answer the question: I cannot tell you what law is. You’re going to say, aren’t you a lawyer? Don’t you practice law every day? You don’t know what law is? I cannot answer the question what law is. I don’t know, no one knows what the true nature of law is. Of course, we’re surrounded by rules, regulations, norms, court decisions, constitutions, contracts; what we can call the sources of law. But in its archetype, in its essence, in its nature… what is law? I do not know.” It appears that the professor himself was aware of the ambiguity of the definition of law. 8 An interesting way of starting law school. While most students left the lecture hall regretting having even thought of studying law, I was more excited than ever to try and uncover the mystery of what law is. This brings us to today. After studying the law and working in the profession for some time, I’ve come to realize that indeed, many before me and my first-year professor had tried to answer the question. While the legal community has not embraced a single answer, generations of jurists have been refining our understanding of law. Our predecessors invited jurists after them to keep reflecting on and thinking about what law is, what we do as jurists and how we do it. My work is a modest attempt to live up to the defining literature on the question of law that has driven jurists for generations, to keep digging and searching for an answer. The angle I take in this short contribution is not to necessarily try to find an answer to the famous question. Scholars have long tried to define law by looking at what makes law, law, or by observing the impacts law has on our everyday lives to then give it a greater social meaning. My approach will be different from what we’ve seen in the past. I will start with what may be a controversial assumption but that nonetheless will be explained and justified throughout the thesis. The assumption is that law is a science. Not a pseudo-science lost between social sciences and humanities, but a formal, autonomous and self-identifiable science. Just like the science of mathematics or physics, the science of law can rely on itself to be understood and identified.1 The purpose of my research is to try to understand whether the law can be appreciated in its 1 Robert P. George, The Autonomy of Law: Essays on Legal Positivism (New York: Clarendon Press, 1999). 9 own right as an objective standalone concept2. In other words, I want to show that law is a science and that jurists are scientists. It is
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