Séminaire avec Ralf Poscher : « The Autonomy of Legal Doctrine. Its Merits in the Process of Social Differentiation »

Affiliation:
Ralf Poscher, is Honorary Professor at the Faculty of Law of the University of Freiburg and Director of the Department of Public Law at the Max Planck Institute for the Study of Crime, Security and Law in Freiburg, Germany
Abstract:
This article challenges the common assumption that legal decisions in hard cases – where law is indeterminate – cannot be specifically legal. It surveys three dominant strategies: one-right-answer theories, which deny indeterminacy; radicalization, which embraces pervasive indeterminacy and politicization of the law; and the mainstream, which marginalizes hard cases. The paper argues that these approaches mischaracterize legal practice and offers an alternative: legal decisions in hard cases can remain distinctly legal by developing an autonomous legal doctrine. Two interrelated features ground this autonomy: the hermeneutic character of justification anchored to pre-existing legal texts and the distinct inferential structure of the legal sphere argumentation. Decisions in hard cases are specifically legal, not because they are legally determined, but because they are subject to legal constraints and come with specific doctrinal commitments. Knowledge of these specifically legal inferential structures and commitments is what qualifies academically trained lawyers. This explains why, as H.L.A. Hart quipped, “hard cases are the daily diet of the law school”. However, the autonomy of doctrine is historically contingent, not conceptual. Ancient Athenian law had institutions and procedures but lacked doctrinal autonomy. It was only classical Roman law that developed a doctrinal sphere ofargumentation. This raises the question: Why did most modern Western legal systems follow the Roman path? The article advances an evolutionary thesis.
In functionally differentiated societies, autonomous legal doctrine enables courts to authoritatively resolve any conflict at any time according to legal criteria while keeping other discourses (scientific, moral, economic) open and innovative.
Key words:
legal methodology, Dworkin, Hart, Kelsen, one-right-answer theories, Free Law Movement, Eugen Ehrlich, hard cases, Roman Law, ancient Greek Law