Methodological Legal Positivism

This Chapter argues that within legal doctrine, scientia iuris’ constructivist dynamics reached their apex with the methodological (or scientific) legal positivism of such jurists as Georg Friedrich Puchta and Bernhard Windscheid. Before contextualising Puchta’s and Windscheid’s work from the perspective of scientia iuris’ nature and working logic, the Chapter shows that there is structural link between the legal positivist tradition broadly understood and Socratic-Humanistic thinking. Uncovering the relationship between the positivist legal mind-set and Socratic-Humanistic thinking, the Chapter argues, not only enables one to better appraise methodological legal positivism’s stances and methods; it also makes it easier to appreciate the inadequacy of those arguments which find in the latter a possible (if not the only) solution to the crisis affecting legal education and practice. Having set the level of analysis, the Chapter engages critically some key-accounts of methodological legal positivism’s aims and methods. In so doing, it shows that the legal positivist mind-set owes much not only to Immanuel Kant (as is commonly held) but also, and more fundamentally, to Socrates’ ‘creation’ of concepts to mediate between experience (particulars) and reason (universals).