June 2004, Volume 90, Issue 4
Common Sense and Legal Science
by Charles Barzun
90 Va. L. Rev. 1051 (2004)
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The notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either naïve or dogmatic. This Note seeks to challenge the assumption of some modern scholars that because nineteenth-century American legal theorists did describe law as a science, their use of the term "legal science" represented an attempt by the legal elite to obscure the inherently political nature of legal doctrine. At the same time, this Note challenges the claims of other scholars, who have defended the concept of law as a "science" by arguing that legal reasoning can yield deductively necessary and certain conclusions. Both groups of scholars assume that achieving legal certainty was the goal of nineteenth-century legal science and only disagree as to whether such a goal was intellectually justified. This Note argues that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. Specifically, such theorists as James Wilson and Gulian Verplanck developed a philosophy of law grounded in epistemological and metaphysical arguments of the Scottish Common Sense school of philosophy. For these theorists, such arguments seemed to justify their belief that they could discover legal principles through the same inductive, empirical methods that had yielded discoveries in the natural sciences. In other words, common sense philosophy allowed them to conceive of themselves as legal scientists.
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