Revista de Ciencias Humanas y Sociales
© 2022. Universidad del Zulia
ISSN 1012-1587/ ISSNe: 2477-9385
Depósito legal pp. 198402ZU45
Portada: Ya basta, cierra la ventana
Artista: Rodrigo Pirela
Medidas: 120 x 140 cm
Técnica: Mixta sobre tela
Año: 2011
Año 38, Regular No.98 (2022): 14-19
ISSN 1012-1587/ISSNe: 2477-9385
DOI: https://doi.org/10.5281/zenodo.7499063
Revista de Ciencias Humanas y Sociales. FEC-LUZ
EDITORIAL
From knowing how to search to knowing how to ask. Some ideas
about episteme and legal science
The title of this editorial represents a great concern of fellow
professors and researchers who have among their main motivations the
teaching of research in legal sciences. As a branch of the social sciences,
this scientific discipline undoubtedly has an object of study like that of its
common trunk: the sciences of human beings living in society, for which
it is nourished precisely by the complexity that makes up the system it
deals with. Human society not only possesses that gregarious element
defined by classical philosophy, but it is shaped by another element that
often fails to be visualized as part of the system that we form as such a
society: the fact of being the individual that we each are within the
framework of the socio-anthropological conglomerate that makes us
unique beings as human essence. The human individual makes the social,
while the social makes the individual, conforming the anthropo-
sociological loop individual-society, whose essential scope constitutes the
human species "in society": "individual-society-species" (Morin, 2005).
This is an obvious fact for the social sciences and the so-called
human sciences. Contemporary sociology and anthropology, however,
suffered a hard blow before their flourishing as such disciplines from the
ancestral notion of the struggle of opposites that characterizes the
structural elements that make up every system, of which, by the way,
human nature participates in all its details and characteristics. This means
that those sciences, possessing an object of study that is made up of a
system, face what precisely characterizes every system: the question of
change and transformation that we have been learning since the classics
with their instructive conceptions, encompassing bold explanations in
the conformation of the phenomena of nature: the struggle between the
opposites that means the opposition between the dynamic and changing
nature of Heraclitus, against the static and fixed nature of Parminedean
nature, comes to our memory. Our professor Miguel Martínez Miguélez
(2005) expresses that from this struggle the second perspective was the
winner, due to epistemic questions.
We express this statement precisely because of the significance of
a cosmological vision of nature and human nature in a non-dynamic and
non-changing epistemic perspective in the social sciences, which I have
already discussed on other occasions. What I want to highlight on this
occasion is the question of the legal sciences as part of the epistemic web
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of the social sciences, as it should be. To think of an object of study for
these sciences that is not the human being in his dynamic relationship
with the environment as a complex system, would lead this discipline
down unprofitable paths in terms of unveiling the truth of the facts that
contour the social conflicts with which this science is directly concerned.
However, it is necessary to establish levels of observation in front of a
core issue in this type of scientific action.
As MacIntyre (1985) states, every science aspires to possess a
system of laws that explain its object of study, an issue from which the
social sciences cannot escape, if they intend to earn the privileged place
held by the natural sciences, whose paradigmatic example is physics, in
particular, due to its ancestral origin, when even in its foundations they
were in a single epistemic framework with philosophy, the latter being
configured as a mother ship from where they sailed together until the
beginning of the second Modernity, marking the beginning of their
separation from that first ship through the Discourse of Method.
Considering the world split in order to be able to know it in a clear and
different way, and separating the subject from the object of knowledge,
although it gave thought new paths to follow in order to separate itself
from the submerged epistemic world in which it found itself, since it was
under the attacks of epistemic theologism, it also gave weapons to the
non-dynamic and non-changing thought that promoted a
characterization of life in Parminedean terms, which logical positivism
raised to its maximum levels of separability.
This is why the social sciences were catapulted as "hard" sciences
from the 19th century onwards, when they understood that they had to
aspire to the scientificity of those natural sciences, such as physics, in
order to enjoy the necessary prestige from which the disciplines that
have to do with knowledge recognized as such by virtue of their
possibilities of systematicity and prediction are nourished. As we have
argued in these spaces of reflection, it is precisely this that makes
scientific knowledge clothe itself with certainties that little by little have
been understood as absent to a large extent, precisely because of the fact
of condensing in its bosom the errors that point towards the existence of
uncertainty itself, in this era of exponential knowledge in the framework
of new paradigms of sustainability of life in society: even the social sense
is changing with the overwhelming presence of the digital world that
characterizes this era of techno-knowledge.
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Well, seen, thus the things, the social sciences, coated as they are
of uncertainties before the facts that raise it as an aspirant to the
knowledge able to predict, is placed in the way of circumstances that
expose it precisely in front of the opposite sidewalk: the unpredictability
of the social facts by the uncertainties that conform the human action, in
the frame of the society that gives it life and institutional and
organizational strengths. From there that all those sciences that derive
from them are also coated with this fault of origin, as MacIntyre (1985)
reminds us. From this, of course, Habermas (1999) and the Frankfort
School wrote memorable pages around this discussion, relative to the
epistemic questions of social sciences and their imprecise method of
prediction.
The legal sciences are in the middle of this path: the idea of
regulating conduct by means of normative prescriptions carries the error
of origin. It is possible to violate the legal norm created to prevent
actions, despite the fact that it has been promulgated based on
descriptions of the actions of human beings living in society; something
that cannot be said of the laws of nature, as it would be to violate the law
of gravity without dire consequences.
Therefore, the action seen as a correlate of the will to act, entails
precisely the idea that the classical philosophy of law shows us as a
fundamental element to understand the idea of law wielded as a legal
theory, which implies raising it as a social theory. The legal sciences, as
the professor Emilio Betti (2019) teaches, are interpretative sciences, so
the facts that cover it as an object of science, are subject to the ups and
downs of all social science: the uncertainty that characterizes all social
systems, so it is also characteristic of the legal sciences.
However, it is necessary to make a disquisition to understand
more clearly the episteme of legal science, because it itself is coated with
a complexity as a scientific discipline, since several instances are
distinguished in its process and deployment as such discipline. First of
all, it is necessary to understand that social action with the characteristic
of juridical action is defined by the fact of bringing consequences to
actions at the level of the obligatory, the permitted and the prohibited
defined by the deontic logic of Von Wright (2018). But this is not the
point of discussion. Where I want to point is towards the fact that
human actions in the socio-legal context are as marked by the volitional
act as are human actions in the social context in general, and as a whole.
The will, as the founding element of action, is by nature clothed in the
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garments of uncertainty taught by the Canadian philosopher mentioned
above, to whom I refer for a better understanding.
From the above, the core problem of this whole issue emerges, a
question that is nothing new: how to approach from a methodological
point of view the idea of the search for knowledge in the legal sciences.
For which we move on to the second point of the plan we are trying to
draw: the idea of the fields of approachability of the legal sciences as a
complex social discipline. If on the one hand there are the logical
consequences of action in this deontological defined tripartite
framework, on the other hand there is the fact of the ontological
framework that also structures them as sciences: these are the fields of
their knowledge. From this perspective, the legal sciences will be
distinguished from the application framework of the legal norms to the
socio-anthropological framework that defines it.
With respect to the first moment, legal sciences assume a role
regarding the framework that organized society designs to apply the legal
norm created to the assumptions that make up the constituent elements
of such a norm, a matter that it does through the institutions that
organize society, but also through the necessary research on the
legitimacy of the decisions that are thus taken. This applicative
framework is equivalent to saying that there is a framework of normative
validity of the action that has been interpreted according to the
parameters set by the institutionality (hence the different epistemic
positions on the legal sciences: iusnaturalism and iuspositivism, to cite
only the two most controversial; this compared to the current
conception of law as argumentation, among other epistemic positions).
With regard to the second moment as mentioned, there is the
socio-anthropological question of the legal sciences, so that the law is
seen from this perspective as the foundation of the facts that are
projected into the legal world. In this sense we speak of legal sciences
whose facts are evidenced no longer in the applicative sense of the norm,
but in the legitimizing sense of the action as such, which is why the law
in force is a unifying element of society because it fits the sense sought
by the institutions, since it is the models of actions that were collected in
the normative institutes created. The law is already in the action that
defines it previously, so that anyone who has carried out actions contrary
to the prescriptions established in the legal order thus established is
subjected to the sanctions that come by way of the applicatory sense of
the created law.
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According to the above, the knowledge of law, which is what is
proposed from its episteme, is reached by different methodological ways.
If it is about the applicative sense of the legal rule, what is proposed is to
know it through the interpretation of the act of application; but if we are
in the second case, the law is known through methodologies that address
the empirical aspects of obedience or not of the legal rule arisen; that is,
through the interpretation not in the first instance of the act of
application (or creation), but through the idea of knowing the proto-legal
action. The truth is that, from both perspectives, strategies of knowledge
proper to this branch of science are imposed on the legal scientist in
order to understand it as a social discipline. In the first case, the question
focuses on the path of the different interpretations that can be given
with respect to the legal norm in its social context. But in the second
case, it is about knowing the social actions with respect to the juridical
norm on which one interacts. Let us say some ideas about the first
aspect, and leave the second for another opportunity.
Regarding the interpretation of the act of application of the law,
knowing the different aspects that arise from such act, implies reaching a
knowledge about, first, the Law in general sense (in all its forms and
nuances: Laws, Decrees, Regulations, Treaties, Ordinances, etc.), and
second, understanding the textual context of the law as a legal
phenomenon embodied in a normative corpus that gives it shape and
legal life as such, and second, to understand the textual context of the
law as a juridical phenomenon embodied in a normative corpus that
gives it shape and juridical life as such. In any case, what I am affirming
is that Law as an object of study from this sphere of social action
(through the texts that contain it), is shaped as an object of study that
must be interpreted in order to reach its meaning; especially when it has
been applied by some institutional decision that affects particular
citizens. In short: Law is text, and as such, object of the theories of
textual interpretation as the aforementioned of the master Betti (2019),
or that of Gadamer (1987) with whom the Italian master arduously
discussed, or of some of the emerging positions for more than 20 years
about law as argumentation (Atienza, 2016; Alexy, 1997; Habermas,
2010).
From the aforementioned perspective, Law as a science deals with
its object of study through the texts in which it is found as a source of
knowledge. Law as a science aims to know the law applied to specific
cases, but also from the provisions established to prevent actions
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contrary to, or in adherence to, the rules drawn by the social order
(hence its concept as an organizer of the social environment). Thus, to
know it is to interpret it, according to the canons and rules of
interpretation to which the interpreter ascribes himself, through the acts
decided by the competent authority when he textualizes it or defines it as
an act of authority: the Law in a broad sense, the Jurisprudence, the
treaties that emerge as national laws when they are incorporated into the
legal system according to the rules in force, etc. In this way,
ontologically, Law is text, so epistemically it is equivalent to a truth value
that is decided in certain circumstances (let us remember the deontic
logic of Von Wright).
That is why the episteme of the Science of Law, from this
applicative sense, is that of being a merely interpretative discipline, so
that the knowledge reached through this way of being of Law is an
interpreted knowledge, or what is the same as saying, knowledge by
interpretation. To know is to interpret, Nietzsche would say, so the acts
of the life of Law make up a corpus of knowledge, not of acts, which
contains what could be said to be the conglomerate of doctrines about
its reality as an object of study. To know the law through institutional
legal acts is to attribute to it a textual and hermeneutic nature, in order to
establish a corpus of interpreted knowledge. Therefore, the designs that
are structured methodologically to know it, it would be appropriate that
they adhere to this epistemic conception. So far, I see some confusion in
the panorama of legal research learning which we will address on another
occasion.
Dr. José Vicente Villalobos-Antúnez / Editor-in-Chief
ORCID: http://orcid.org/0000-0002-3406-5000
jvvillalobos@gmail.com
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REFERENCES
ALEXY, Robert. 1997. La teoría del discurso racional como teoría de
la fundamentación jurídica. Centro de Estudios
Constitucionales, Madrid (España).
ATIENZA, Manuel. 2016. Las razones del derecho. Teorías de la
argumentación jurídica. Editorial Palestra, Lima (Perú)
BETTI, Emilio. 2019. Teoría de la interpretación jurídica. Ediciones
Universidad Católica de Chile, Santiago (Chile).
GADAMER, Hans G. (1987) Verdad y método. Editorial Sígueme,
Salamanca (España).
MORÍN, Edgar. 2005. Introducción al pensamiento complejo.
Editorial Gedisa, Barcelona (España).
HABERMAS, Jürgen. 1999. Teoría de la acción comunicativa.
Racionalidad de la acción y racionalización social. Editorial
Taurus, Madrid (España)
HABERMAS, Jürgen. 2010. Facticidad y validez. Sobre el derecho y
el Estado democrático de derecho en términos de teoría del
discurso. Editorial Trotta, Madrid (España)
MACINTYRE, Alasdair. 1985. Tras la virtud. Editorial Crítica,
Barcelona (España).
MARTÍNEZ-MIGUÉLEZ, Miguel. 2005. El paradigma emergente:
hacia una nueva teoría de la racionalidad científica. Editorial
Trillas, México.
WRIGHT Von, Georg Henrik. 2018. Lógica deóntica. Ediciones
Olejnik, Santiago (Chile).
UNIVERSIDAD
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Revista de Ciencias Humanas y Sociales
Año 38, N° 98 (2022)
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