Towards a New « Antecedent Legal Method »

Available at SSRN (June 29, 2022): https://ssrn.com/abstract=4149668

The law is a matter of choice. To choose the law is to privilege one set of rules over another and to make one decision rather than another. These choices are dominated by an a priori understanding we have of the subjects to which we apply the law. These a priori can be assumptions, presuppositions, prejudices, paradigms, beliefs, commonplaces, biases or emotions. The crucial question is how we can address this initial understanding in a way that fuels an original critical re-consideration of the law. An answer may be found in the philosophy of science. Two accepted definitions of the a priori coexist. In the first, an a priori is understood as a transcendental justification of knowledge. In its second and most usual meaning, it is a prejudice.

The perspective of a new method to be constructed seeks to demonstrate that these two perspectives lead to an epistemological impasse when applied to the law. There is considerable debate as to whether the law is a science, whether there is a specifically legal knowledge, and whether it is possible to use experiments in this field. These endless controversies are sterile. We need a wide-ranging and inclusive research of a priori, here renamed as « antecedents » to provide a true epistemological opportunity for the field of law.