ON LAW, FROM A MULTIDISCIPLINARY PERSPECTIVE

In my interpretation “Multidisciplinary Legal Research” is an approach that is not limited by overly restrictive methodology in support of sophisticated analysis, often by syntheses. The conceptual analysis of law offers many chances to discover the internal logic of a certain law. However, as we know, the life of the law has not been logic, it has been experience.1 It is also clear that the essence of law is in its function, and this function can be realized only by the operation and application of law. Conceptual approaches cannot grasp this operation merely through analysis of concepts. Functional approaches to the understanding of law, in contrast, can lead us to a theoretical concept of law.

Of course, the analytical-conceptual approach can be highly helpful in cognition, but this is true first and foremost in the case of developed legal systems that were founded on a conceptual basis. We should not forget that our modern legal systems are not merely products of conceptual and theoretical categories. These systems are continuations of a special ideological structure, which consisted of Christian morality, an irrational (but often expedient and efficient) system of feudal domination, and Roman law. These are the deeper bases of our legal systems. Consequently, in our attempt to understand the nature of our law, we cannot neglect analysis and inquiry into past phenomena. The historical aspect is of particular importance from this point of view.

As is also clear, legal philosophy is an interdisciplinary area, because this domain is situated between the territory of law and the field of philosophy. In spite of this fact, the acceptance of inter- and multidisciplinarity proved to be significantly more difficult in jurisprudence (as in the humanities in general) than in the natural sciences. Although this phenomenon can have various causes, I tend to think that the most probable reason for this lies in the nature of the humanities. Namely, natural science is organized on the basis of expediency, whereas ideological momenta have a bigger role in the human disciplines and cultural evolution.2 These contain elements of belief (imagination and ideas) that offer more formidable resistance to new thoughts and approaches than pragmatic-rational reflections.

From these perspectives the traditional, analytical-conceptual attempts are especially interesting in approaches to the phenomena of normativity and validity. Also thought-provoking is the question of how categories of phenomena and the concepts can get confused in this inquiry to a certain degree. Moreover, paradoxes become entangled in the research. We can only expound elements from a concept that we took into that notion previously. Namely, a concept cannot exist without its creator, although the phenomenon, which is covered by philosopher, can. We instinctively interrogate the modern concepts of normativity and validity on the basis of our democratic and rational ideology, however simultaneously we tend to smuggle certain contents into the concept under examination, contents which were not necessarily part of the concept originally. Thus, we should distinguish phenomena of normativity and validity from concepts of normativity and validity. The phenomenon of normativity (or validity) is rooted deeply in the complex of human behavior (this is a special conglomerate of characteristics of human behavior),3 especially in obedience.4 Fundamentally irrational momenta acquire importance in this phenomenon, but significantly, rational considerations do not. Numerous efforts have been made to explain normativity in the context of conscious decisions, and these explanations do not take into account the irrational nature of real social processes.5 Thus, the concept of the normativity (or validity) is not discoverable merely through conceptual analysis, but one can approach it through observation and description. Perhaps the duality of phenomenon and concept is the biggest trap for legal philosophers. Western thinking makes us believe that the conceptual approach provides the best solution for cognition.

However careful we may be as we contemplate these questions, we must accept that we cannot rely on previous ideological suppositions (for example natural legal thoughts about the will of majority or positivistic legal ideas about the faultless creation of norms and validity) if we wish to discover normativity (or validity) as a value-neutral ontological category. We should first observe the operation of things about which we subsequently create a concept. Frankly speaking, if we intend to examine the man-made law and its validity and normativity, we would do well to consider the real nature of humankind, and not only what we wish to see about mankind and its law. However, in this case we open wide the door of the legal philosophy and look into the disciplines concerning human nature. And we cannot be sure that what we see will be identical to our previous ideological expectations about humanity.

As is well-known, a historical attitude comes to the fore in the late periods of cultures. This happened in Western culture in the 18th century. We can see this not only on the basis of Spengler’s philosophy of history. Anyone could cite examples from his or her own life and on the basis of personal experiences of how the progress of the age is connected with the shaping of a historical attitude and a nostalgic viewpoint. At that same time, namely in the 18th century, history became a discipline, and gradually the historical attitude determined other forms of the thinking, whether in the questions of the arts or in problems of the law. Also legal history became an independent branch of the humanities, showing the changeability of the legal institutions and the law itself. Legal philosophy, which significantly dealt with the connection between law and morality and interrogated law thought previously to be proper, began to grow doubtful.

Although Grotius and Pufendorf reminded us of the culturally determined character of law, the plurality of legal forms and spirits of the legal systems became more and more clear through the opening of the historical (and of course geographical) perspective. The historical view and the interpretation of social processes on the basis of their reasons and causes brought a sociological view to the foreground, while sociology also shaped an independent discipline. Legal sociology developed a separate direction of research in the wake of the works of Ludwig Gumplowicz6 and Max Weber,7 further enlarging the perspective of legal philosophy. Also the revolution of psychology, including the research of Pierre Janet, Sigmund Freud, Alfred Adler and Carl Gustav Jung, did not leave legal philosophy untouched, or intact. The existence of the law appears as a special interference of conscious and unconscious, instinctive mechanisms in the works of Scandinavian and American legal realism. Theories relating to culture and anthropology have helped comparative legal research, and legal anthropology came into existence too, while the scientific analysis of the literature formed the stream of “law and literature” and economy laid the foundation of the economical analysis of law. However, the traditional questions and problems of legal philosophy revolved around legal positivism and natural law, in spite of the gradual multidisciplinary transformation of the philosophy of law.

Austin, Somló, Kelsen and Merkl and of course Langdell were able to summarize the problems of the law (as an autonomous phenomenon) in such an appealing way, and Stammler, Radbruch, Verdross, Rawls, Messner argued for the theory of natural law with such originality that the tension between these two characteristic standpoints exerted a particularly strong influence on the discussion of legal philosophy. Some decades later, in Critical Legal Studies (a highly exciting continuation of the American Legal Realism) the psychological stream became stronger again, but its (CLS) ideological disposition and its activist character limited the chances of this tendency in a paradigmatic renascence and regeneration of legal philosophy.

In the middle of the 20th century a new discipline came into being again, namely ethology. On the basis of research of Konrad Lorenz and other scientists, not only the behavior of animals has been examined, but scientific interest also spread to areas of human nature and the behavior of mankind, as well as to cognition and the evolutionary description of humankind as a race. In this process, among others Eibl-Eibesfeldt and similar social-psychologists created lasting works, offering a particularly lively exposition on human behavior, which is in most cases independent of cultural circumstances.

Ideological, quite idealistic and fundamentally speculative natural law got a chance at renewal from the biological, evolutionary viewpoint. Margaret Gruter attempted to approach the phenomena of law8 on the basis of the biological determination of human behavior, and excellent legal scholars joined her efforts, such as Wolfgang Fikentscher.9 Thus, a new inspiration of legal thought arose again in the German cultural area after Pufendorf, Kant, Hegel etc., but this tendency reached a breakthrough only in the United States. Gruter’s work, including her fundamental books, the foundation of the Gruter Institute, and the organization of international conferences, was pioneering. Owen D. Jones continues down the path she blazed not only by publishing superb writings,10 but also by systematizing evolutionary jurisprudential efforts by the organization of the Society for Evolutionary Analysis in Law.

However, these ambitions and exertions exist merely as alternatives to the mainstream of legal philosophy. It is also clear that the biological interpretation of law11 is spreading in the same way as research on law as an interdisciplinary phenomenon. The establishment of the Southern California Interdisciplinary Law Journal was a quite early moment of the latter process in 1978. Nowadays inter- and multidisciplinary research and interpretation come to the foreground more and more at universities and institutions.

The common aspects of the law and the environment are accentuated at the Vanderbilt University Law School over and above the evolution-related research of Jones. The Center for Interdisciplinary Law and Policy Studies at the Ohio State University Moritz College wishes to illuminate the connections of law, nature, society and culture. In the 1990s the reorganized Interdisciplinary Academic Programs of the University of Chicago Law School properly shows the essence of multidisciplinary legal efforts, namely “the law does not exist in a vacuum.” However, the Planning and Interdisciplinary Curriculum of the Vermont Law School aims to formulate a many-sided approach to the law in the same way. The Yale Law School Forum on Multidisciplinary Legal Research has facilitated intellectual exchange among graduate students with research on legal or legal-related issues by more meetings. Especially remarkable is the research of David Garland at the New York University School of Law, which map the connections between punishment and culture.12 However, in Europe there are also some ambitions to break out from our traditional concepts and theories, eliminating boundaries between legal and non-legal phenomena. John Bell has presciently warned, “The study of all legal subjects needs to be informed by theory and perspectives of non-legal disciplines.”13 Related to the change of thinking, Maurio Zamboni’s article, which marks acclimatization of evolutionary theory in the domain of legal theory, is particularly noteworthy.14

With some superficiality we can establish that in the theoretical research on law the cultural approach, biological-evolutionary interpretations,15 and in general multidisciplinary tendencies gain more and more ground.16 The biological tendency is fundamentally related to the fact that in the past half century such a vast amount of scientific knowledge concerning mankind has been accumulated that it simply cannot be neglected by legal philosophy. The change of our image of human nature allows us less and less to base examination of the law on old and ideological thinking.

As an explanation for the multidisciplinary approach to the study of law, in most cases lawyers have to acquire certain specialized knowledge relating to their profession, rules that they will use. However, there are two other cardinal reasons to change views. First, one notes the general inter- and multidisciplinary tendencies of the sciences, and second, the positivistic idea about the autonomy of law, espoused among others by Langdell, is less and less tenable. These circumstances touch first and foremost on the practice, legislation and application of the law. However, we should realize that multidisciplinary legal research and multidisciplinary analysis of law are important in legal philosophy too.

Moreover, legal philosophy has to clarify the structural inter-relations among the approaches of different scientific disciplines. In an optimal case various approaches to law do not coexist incidentally, haphazardly, offering only alternative perspectives. Thus, in my interpretation multidisciplinary legal research in the long run is not only a conglomerate of the coequal viewpoints, but is a special system from generality to peculiarity, wherein the examination is fundamentally adapted to the respective ontological, law-determining levels. Namely, actually existing (thus not hypothetical and imaginary) legal systems have been built on certain biological determinants, onto the basis of the complex of human behavior. Of course, this basis permits several, often conflicting solutions, but from these cultural characteristics and traditions select and shape the actual institutions.

Within the culturally determined system of course there is room for conceptual approaches and analyses of the law, but only where the legal system first exhibits a definite conceptual construct. Thus I presume that three fundamental levels of the approaches to law can be distinguished (biological, cultural and conceptual), which also could be complemented by horizontal viewpoints. Numerous particular problems emerge during the examination of the law the answers to which fall under areas of other disciplines. For example, law often is connected with religion and psychology. Thus, when we examine law, we have to answer in an appropriate manner problems that belong fundamentally to the spheres of the history of religion, psychology, history, or other disciplines.

NOTES:

1 Holmes, Oliver Wendel 1881: The Common Law. Little, Brown, and Co. Boston. p. 1.

2 Eibl-Eibesfeldt, Irenäus 1989: Human Ethology. Aldine de Gruyter. New York. p. 12.

3 Csányi, Vilmos: Reconstruction of the Major Factors in the Evolution of Human Behavior. Praehistoria vol. 4-5. 2003–2004. p. 221–232.; see also Csányi, Vilmos 2006: Az emberi viselkedés. (Human behavior) Sanoma. Budapest.

4 Milgram, Stanley 1974: Obedience to Authority: An Experimental View. Harper and Row. New York.

5 Eibl-Eibesfeldt 1989 p. 12.

6 Gumplowicz, Ludwig 1909: Der Rassenfampf. Sociologische Untersuchungen. Verlag der Wagner’sche Univ. Buchhandlung. Innsbruck.

7 Weber, Max 1978: Economy and Society: an outline of interpretive sociology. University of California Press. Berkeley.

8 Gruter, Margaret – Bohannan, Paul 1983: Law, Biology – Culture: The Evolution of Law. Ross Erikson. Santa Barbara; Gruter, Margaret 1991: Law and the Mind: Biological Origins of Human Behavior. Sage Publications. Newbury Park; Gruter, Margaret – Masters, Roger 1998: Common Sense, and Deception: Social Skills and the Evolution of Law, in Festschrift for Wolfgang Fikentscher. Mohr Siebeck. Tübingen.

9 Fikentscher, Wolfgang – McGuire, Michael 1994: A Four-Function Theory of Biology for Law, 25 Rechtstheorie p. 1–20.; Fikentscher, Wolfgang 2004: Modes of Thought: A Study in the Anthropology of Law and Religion. 2nd ed. Tübingen: Mohr Siebeck; Fikentscher, Wolfgang 2009: Law and Anthropology: Outlines, Issues, Suggestions. München Bayerischen Akademie der Wissenschaften.

10 Jones, Owen D. 2004: Law, Evolution and the Brain. 2004. 359 Philosophical Transactions of the Royal Society: Biological Sciences p. 1697–1707.; Jones, Owen D. 1997: Law and Biology: Toward an Integrated Model of Human Behavior, 8 Journal Contemporary Legal Issues p. 167–173. 1997.

11 Guttentag, Michael: Is There a Law Instinct?; Washington University Law Review p. 270–327. Vol.87:269 2009.

12 Garland, David: A Culturalist Theory of Punishment. Punishment & Society: The International Journal of Penology. Vol. 11:2 p. 259–269.

13 Bell, John 2003: Legal theory in legal education – “Anything you can do, I can do meta…” in Proceedings of the 21st IVR World Congress. Svein Eng (ed.). Franz Steiner Verlag. Stuttgart. p. 61–68.

14 Zamboni, Maurio 2008: From “Evolutionary Theory and Law” to a “Legal Evolutionary Theory”; German Law Journal 2008. Vol. 9:4 p. 515–546.

15 Guttentag 2009.

16 Clark, Robert C. 1981: The Interdisciplinary Study of Legal Evolution. The Yale Law Journal Vol. 90:5 p. 1238–1274.; See a careful new opinion: Parisi, Francesco 2009: Multidisciplinary Perspectives in Legal Education. University of St. Thomas Law Journal. Vol 6:2 p. 347–357.; Clark, Robert C.1981: The Interdisciplinary Study of Legal Evolution. The Yale Law Journal Vol. 90. p. 1238–1274.

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