Outlines of the Kuhnian Model

According to the traditional view of scientific progress, science develops by adding new truths to the stock of old ones, or increasing the approximation of the theories to the truths, and, in the old case, the correction of past errors (Verronen 1986, 139; Bird 2004, 4).

In 1963, Kuhn published “The Structure of Scientific Revolutions”, the first in the series “International Encyclopaedia of United Sciences”, edited by Otto Neurath and Rudolf Carnap (Bird 2004, 2). The second edition was published with a postscript in 1970. This very edition has been the basis of my study.

In normal periods, the development of science is driven by adherence to a paradigm essential to that field of research. Kuhn calls the science prevalent in normal periods normal science. The function of a paradigm in the normal phase is to supply puzzles for scientists to solve and, at the same time, to provide tools for the puzzle solving (Kuhn 1970, 35; Bird 2004, 5). The core of the normal science conveys the idea that, like a person doing crossword puzzles, the scientist expects to have a reasonable chance of solving the scientific puzzle. The scholar takes it for granted that the puzzle solving depends, at least mainly, on his own ability as a scientist. This is possible if the puzzle itself, as well as the solutions, are familiar to the scientific community and to the scholar as a member of that community.

In a crisis (or revolutionary) situation, confidence is lost as regards the paradigm's power to solve acute puzzles. Kuhn calls these “new” puzzles anomalies. Not all periods of science lose their capacity for puzzle solving to such a degree that the puzzles could be classified as anomalies.

Contrary to the ideas of Sir Karl Popper, Kuhn maintains that normal science can only progress on a precondition that there is a strong commitment by the scientific community to their shared theoretical beliefs, values, instruments and techniques (Kuhn 1970, 182). Kuhn also adds metaphysics to the list - that is, the hidden com­mitments being a part of the foundation of science in general. Kuhn first called this complex totality of shared commitments paradigm, and later, disciplinary matrix (Kuhn 1970, 183; Verronen 1986, 58). The unsteadiness in the use of the notion of “paradigm” caused a lot of confusion among Kuhn's critics.

What use are these notions, introduced to explain development in sciences, as regards DSL? This question cannot be answered without first defining certain basic concepts, by means of which the applicability of Kuhn's theory can be evaluated. As far as DSL is concerned, three notions, and thus three factors of change, have to be taken into account:

1. the world in which the doctrinal study of law is practised,

2. the concept of change, and

3. what we understand the doctrinal study of law to mean.

No further conceptual discussion of the first point (i.e. of the world) will be engaged in later on. Instead, the focus will only be on the notions of change and, once again, that of DSL. However, one implicit presupposition still has to be kept in mind.

By change, I mean the transition of the world from state t1 to state t2 (von Wright 1968, 37, 1971, 43). In this very sense, the change is an objective concept in which the cause of the change is of no importance. One can, of course, deal with properties like the intensity, speed or size of the transition, and - taking an example - speak about the “big steps of change”. These kinds of substantive qualifiers have been left out of this contribution. They are of no help in our search for an answer to the question: Is it conceptually possible to identify the “Kuhnian” changes in DSL?

The notion of development has a different status to (mere) change. It is always intertwined with evaluative criteria (Aarnio 1997, 247). A positive development means that state t2 is defined with criteria k1... kn as being “more valuable”, or “better” or “greater” than the basic state t1. Negative “development”, for its part, is regression from state t2 to state t1 by the same type of qualifiers. Thus development is always relative to its starting point (to state t1). The problem with this definition lies in the quality of the “more/less valuable than”. Man has, without doubt, devel­oped from a producer of primitive stone tools to a user of information technology, but has he developed in the making of a stone object? The change is, no doubt, development, if the effectiveness in using the technical tools or the speed of produc­tion is adopted as a criterion. If change is separated from criteria like these, it only becomes a transition from one state of affairs to another.

Progress is a subspecies of development (sensu largo), but supplemented with additional qualifiers.

A developed community is not necessarily progressive. This is the case if its state of objectives is not aimed toward development. Therefore, progress is conceptually a matter that is wanted. It would be curious to use the word “progressive” to describe a person who is satisfied with the status quo, or even ready to regress. On the other hand, it seems natural to think that we progress as human beings if we develop into “better people” and become, for example, more socially skilful. These qualifiers are characterised by certain criteria that shape ideal states of objectives.

Whether or not the Kuhnian model can be applied to DSL is still a problem (Peczenik 1984c, 141; Wimmer 1979, 37). For the further analysis of change, development and/or progress of DSL, I recall David Nehrman’s theory on legal interpretation and the filling of gaps (see Chapter 2). In light of his theory, two factors directing the change of law can be identified:

1. the totality of cultural commitments, and

2. the totality of commitments that conceptually hold legal thought together.

The cultural commitments specify, among other things, social relationships (rela­tionships between people, relationships in production, etc.) and the moral code accepted by people. Cultural commitments also define the relative priorities of dif­ferent conflicts. In a socialist system, the economic conflicts between individuals have been minimised, whereas a market economy relies on competition to dictate the relationship between the strongest and weakest.

Cultural hypotheses also lock down the means of conflict solution that are favoured - that is, use of force, negotiation or consensus.

When focusing on the European tradition, we should first bring up the influence of Roman law from the group of legal commitments - especially the Institutions formulated by Justinianus' corpus iuris civilis and, later on, jus commune, which provided the conceptual background for building the modern European law (Van Caenegem 2006, 109). Nevertheless, whatever the historical background, the con­cept of law is always defined by means of a certain “conceptual culture”, and the law of each age is only a sequel of long-standing development started in Antiquity and essentially based on the Judeo-Christian tradition. Taking this for granted, I will come to analyse the change in the doctrinal study of civil law in a more detailed way.

To use David Nehrman as an example again, it seems to be evident that the conceptions of the content of law always change when the cultural or other com­mitments that hold law together go through a transformation. As regards the theory on the formation of that issue, As was referred to above, Kuhn introduced the con­cept of paradigm. Part of the blame for the concept's varied use must be directed at Kuhn himself. His concept of paradigm was many-sided to begin with.

On one hand, he used the concept to mean a model, or a view, of science, On the other hand, the notion referred to model cases of research (exemplars). Some well- deserved criticism was directed toward Kuhn for this confusion and, as a result, he later adopted the concept of a “disciplinary matrix” specific to each branch of science.

To make a rough generalisation, the disciplinary matrix (later: matrix) is the con­sensus on exemplary instances of scientific research (Kuhn 1970,23). Kuhn calls the exemplars of good science paradigms in the narrow sense of the term. Thus the con­sensus of a disciplinary matrix is primarily agreement on paradigms as exemplars. Understood in this way, the disciplinary matrix not only explains the normal science but also the crisis of it, as well as the renewal of normal science. It is important to emphasise that, according to Kuhn, there is a matrix specific to each discipline.

Following this line of thought, the matrix is a framework that connects scientists as a matter of consensus. It explains the fact that relatively trouble-free interaction can be found to exist between scientists of a certain area. The matrix also helps us understand how unanimity of a relatively high degree can be accomplished in the “professional evaluation” of research. From this point of view, the conversa­tion sparked by Ilkka Niiniluoto about the hallmarks of science deals with the same things as the Kuhnian matrix. With its help, the scholars are able to reach some degree of consensus on

• what is science in general,

• what is scientific research in any given area, and

• what is good scientific research in a given field.

A “shared” matrix also makes DSL to be the doctrinal study of law, sociology to be sociology, etc. When it comes to law, for example, being conscious of the matrix and articulating it in an understandable way helps to identify (with relative ease) the intellectual interest specific to law, as well as the intellectual point of view that satisfies this interest.

Still, these kinds of general observations of Kuhnian thought would not take us far in the analysis of the change in DSL. Kuhn's theory, meant for the “hard” sciences, has to be submitted to a substantially more detailed analysis than was done before. Only in this way is it possible to get something useful out of it, and only if the basic concepts have been redefined is it possible to see what kind of specifications the Kuhnian theory needs in order to be adequate as far as DSL is concerned.

Kuhn's basic idea is that scientific research is a process in which the scholars constantly confirm existing truths and reject those that do not fit in with the shared conception of the “truths” of a certain area. Still, Kuhn was not as interested in steady continuity as he was in the breaks in the scientific development. Therefore, the focus of Kuhn's analysis is on the discontinuity of the development of science.

This means that the notion of incommensurability gets a central role in Kuhn's thinking. According to the standard view in the philosophy of science, the judge­ment of the epistemic quality of a scientific theory is based on the use of standard methods for reaching the acceptable evidence of a certain theory. Kuhn rejected this idea. He maintained that the scholars judge the quality and success of a theory by comparing it to a theory that has a paradigmatic status. The standards of compar­ison are not permanent, nor independent of theories. Paradigms and matrixes may change, and the comparison between the “old” and “new” depends on the theories involved in the comparison.

That is why Kuhn emphasised the incommensurability so much. Theories are incommensurable if they do not have a common (shared) measure for use in the comparison. According to Kuhn, there are three types of incommensurability: (1) methodological, (2) observational and (3) semantic. In the first case, there is no common measure due to the lack of methodical tools to compare and evaluate the anomalies. As regards observational incommensurability, the observational evi­dence can no more provide a common basis on which to compare the theories at issue. Semantic incommensurability means that the language of the theories of dif­ferent periods is not inter-transable, which makes it impossible to compare those theories with each other.

To shape this, Kuhn draws a picture of the general phases of scientific devel­opment. He describes development by taking off from a pre-paradigmatic phase, where the intellectual framework that connects the scientists has yet to be stabilised. As time goes on, a certain model of science (paradigm/matrix) is stabilised as the shared horizon of discussion among the scientists. Thus a matrix that dominates all scientific discussion in a certain area is born. Only the thoughts presented within it are “scientific”, while the ones that deviate from it are “unscientific”.

The dominating matrix is articulated in the scientific theories of the given field of science. This is one of Kuhn’s fundamental findings. According to him, as time goes on, certain facts can no longer “fit” in the frames of the theory. They cannot be explained by the theories approved by the matrix. Normal science is being tested, and this test finds its form in unsolved scientific problems, anomalies. Once there are a certain number of anomalies, the dominating matrix gets into a crisis. Up to a certain point, the dominant way of thought can be supported with suitable additional hypotheses, but the increasing pressure of the anomalies will in time give rise to a need to revise the matrix itself. As was referred to above, a crisis of science is at hand (Kuhn 1970, 12). This can be solved in one of three ways:

1. The anomalies prove to be apparent, so in the end they can be explained on the basis of the dominant matrix, possibly by making specifications to it.

2. The situation that seems to be anomalous is eliminated from science, such as “unscientific”, and is thus placed into waiting for better times.

3. The new matrix is victorious, giving rise to a rupture or change in the scientific model, or what Kuhn calls a scientific revolution.

According to Veli Verronen (Verronen 1986, 59, 160; Aarnio 1981, 99), the incommensurability of two matrices means the following:

(1) The world described by matrix M1 is formed of different entities and is domi­nated by conformities that deal with different things than the world represented by matrix M2.

(2) The normal science defined on the basis of matrix M1 is different from the science dominated by matrix M2.

(3) The facts interpreted on the basis of matrix M1 are different from those interpreted by matrix M2.

Incommensurability can be described with these conceptual tools and with the help of the example of two different puzzles, used by Verronen. Puzzle P1 cannot be assembled from the same pieces as puzzle P2, even if some of the pieces are similar. The pieces left over from the puzzle P1 (the anomalies) do fit into puzzle P2; in this case, the puzzle itself (its basic character) must be changed in order to match the new system of pieces. What is integral in this is that the switching of puzzles, the change in thought, can and will only happen when there are a certain, relevant number of “unexplained” pieces left outside the former puzzle P1. The following scheme, illustrating the change and rupture of science (scientific revolution), encapsulates the integral parts of Kuhn’s thoughts in relation to the dimension of time, the status of the theory’s development and the formation of the scientific community.