In contemporary Spanish legal philosophy, there is a scarcity of scholars, like Manolo Atienza and myself, who have delved into the cognitive status of legal dogmatics.
I’m referring to reflections primarily addressing the question of whether legal dogmatics is a science or not, and in what sense. This excludes the vast literature dedicated to natural law, legal positivism, legal realism, or their authors, historically focused and more recently proliferating around the debate on neoconstitutionalism. I will not delve into studies of philosophical-legal scope carried out by jurists such as Hernández Gil, Enrique Gimbernat, Alejandro Nieto, or Jesús Delgado, nor those by legal historians like Sánchez-Arcilla. The studies I refer to here are essentially descriptive metatheoretical analyses of legal dogmatics, distinct from the predominantly prescriptive or critical metatheory, exemplified by the works of Álvaro Núñez Vaquero.
Aside from Albert Calsamiglia’s groundbreaking book, “Introducción a la ciencia jurídica,” which appeared in 1986, my involvement in this discourse dates back to a debate with Manolo and Roberto Vernengo in 2003. This debate, captured in my subsequent writings, perhaps gained traction through republications in various compilations from 2011 to 2012 across Spain, Argentina, and Mexico.
While Calsamiglia’s book title may have been incongruous with its content, the insights it offered into methodological questions and the scientific status of legal dogmatics were valuable. Similarly, Manolo Atienza’s 2017 work, which drew from my earlier writings, added to the discourse with some moderately controversial observations. This book in his honor serves as an opportune platform to revisit the fundamental elements of previous studies and continue a dialogue that has generally aimed to reconcile our (albeit limited) differing positions.
About five years ago, I revisited the topic of legal dogmatics when invited to participate in an interdisciplinary doctoral course session focused on the concept of theory. Alongside physicists, linguists, and mathematicians, I had twenty minutes to explain what constitutes a legal theory. This session underscored not only the significant differences between these disciplines and their respective theories but also the peculiarity of discussing “science” in the context of law.
During this session, I proposed distinguishing three levels of legal theorization: low, medium, and high scope. The low scope theories relate to sets of rules and institutions constituting legal constructs. This type of theorization, exemplified by the regulae of Roman jurists, continues into contemporary times, evident in doctrines like abuse of rights or the crime of genocide.
Medium scope theories involve the systematic conceptualization of law, exemplified by German pandectism’s rich theoretical system on civil law. Similarly, German penal dogmatics’ doctrinal categorization of the offense as “typical, unlawful, and culpable” illustrates this level of theorization.
At the highest level are broad theories encompassing general conceptions and justifications of legal systems, such as natural law and legal positivism. These major theories have persisted since the nineteenth century, often in contention, along with legal realism, which emphasizes the social dimension of law.
These theoretical levels presuppose a gradual and continuous scale with intermediate levels and diverse interrelationships, such as financial law, European Union law, legal informatics, and bioethics. Transitional justice, now an academic discipline, exemplifies this gradual progression, demonstrating the reciprocal influence between theory and practice characteristic of legal culture.
Can these “theories” be considered scientific in any sense? With some clarifications, I maintain the metatheoretical position outlined in my 2003 article: that legal dogmatics cannot be considered an empirical or descriptive-explanatory science. Its normative nature distinguishes it from the social sciences, evident in its interpretive methodology, which proposes meanings rather than causes.
The legal-dogmatic method involves the systematic re-elaboration of legal material, comprising selection, classification, and analysis phases, with a normative rather than factual aim. Legal dogmatics’ interpretive nature serves normative or evaluative purposes, evident throughout its pre-dogmatic, interpretive, and post-dogmatic stages.
In conclusion, legal dogmatics, while centered on the study of norms, interprets them normatively rather than descriptively, shaping legal practice through didactic, integrative, and legal policy functions. Its normative character distinguishes it from empirical sciences, underscoring its unique role in legal scholarship and practice.