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General purpose and method: beyond dogmatics
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– 17 – General purpose and method: beyond dogmatics 1. Dogma under pressure. In our “enlightened” times, the concept of dogma has acquired a rather negative connotation. Most people seem to believe that we should not accept dogma(ta) without constant, or at least potential critical reflection1 . Even so, dogma continues to be relied upon in certain areas of life where we strive for a form of authoritative certitude, such as religion, or law. It seems as if our quest for stability here warrants the use of a modus of a thought that builds upon a set of premises that are accepted without constant critical re-examination, as authoritative. Dogma, in that very broad sense, can surely be understood as a notion underpinning the very foundations of law in different ways. Hence, jurisprudential thinkers have tried for a long time to explain how, why and to which extent dogma rules or plays in law: some have emphasized the entrenching or exclusionary function of the rules with which law works2 , others have tried to explain how dogma merely constitutes a framework within which or starting point from which legal reasoning can thrive critically and reflectively3 , and still many others have tried to explain how dogma figures in law in still different ways. Therefore it has been accepted by most scholars that dogma in one way or another, and “by implication” legal dogmatics4 , is a part and parcel of (the) law, or more precisely, thinking about (the) law. I want to make clear at the outset that – despite what the title might be read to suggest – I do not want to challenge this idea as such. 1 The locus classicus of this idea is Immanuel Kant, Beantwortung der Frage: Was ist Aufklärung? (1784) in 8 Akademie Ausgabe 33, 35. This idea penetrates even the most fundamental level of reflection for some philosophers. Karl Popper, for instance, argued that even if ‘we are prisoners caught in the framework of our theories; our expectations; our past experiences; our language […] we are prisoners in a Pickwickian sense: if we try, we can break out’ (Normal Science and its Dangers, in Criticism and the Growth of Knowledge 56 (Imre Lakatos & Alan Musgrave eds. 1970)). 2 Some notable examples are Joseph Raz or Frederic Schauer (see for instance references infra note 56). 3 Eg Karl Larenz & Claus-Wilhelm Canaris, Methodenlehre der Rechtswissenschaft 51-55 (3d ed. 1995) (starting point, commenting on Luhmann’s conception); compare Robert Alexy, a Theory of Legal Argumentation 250 et seq., esp. 256 and 269-270 (R. Adler & N. MacCormick transl. 1989) (framework). 4 This term is virtually unknown to or unused by American scholars (Aulis Aarnio & Aleksander Peczenik, Beyond the Reality. A Criticism of Alf Ross’ Reconstruction of Legal Dogmatics in Meaning, Interpretation and the Law 10, 25 (Aleksander Peczenik ed. 1986), according to Golding because American do not generally appertain a scientific view of law (Martin P. Golding, My Philosophy of Law in Legal Reasoning, Legal Theory and Rights 1 (2007); also see Aleksander Peczenik, Scientia Juris 2 (2005)). Introduction – 18 – 2. Acceptance of dogma(tics) in law: theory and practice. The reasons why I do not challenge this idea as such are manifold. First of all, there has been a thorough debate, albeit without a unanimous outcome, on what legal dogmatics actually means or constitutes. Answering this question often coincides with tackling questions of a more general jurisprudential nature: accordingly, dogmatics will be seen as more scientific or conceptual in a system of conceptual jurisprudence, whereas it might be construed differently when one starts from different theoretical or methodological premises5 . We will not delve into these issues in depth, considering that this book primarily serves a pragmatic purpose. Be that as it may, it will soon become clear to the reader that the book, which focuses on the question how European law influences Belgian constitutional case law on federalism, can, and indeed should, also be read as an attack on some of the remnants of a more scientific, conceptual or systematic view on thinking about law which has generally thrived within the thoughts of Belgian – and perhaps more widely: continental – constitutional law scholars. Indeed, even if some legal theorists have succeeded in starkly relativizing dogma (or the scope of dogmatics as a way of understanding and systematizing law), it is not always clear how this relativization has materialized within the practice of legal dogmatics itself, which can provisionally be described as the practice of commenting on, explaining and indeed systematizing – in our case: Belgian...