Summary

Ilkka Niiniluoto has formulated some complementary requirements to the Mertonian analysis and those presented by Raimo Siltala (Niiniluoto 1984, 21). Niiniluoto builds his analysis on a list of six criteria, which also have great value for legal research.

One of the main features of science is its systematised structure. An arbitrary and unforeseeably changing research strategy does not enable one to grasp the object of the research. The matter may be elucidated with the “mist-creature” described by the Finnish philosopher Eino Kaila. The world-view of a mist-creature consists of a series of individual and arbitrary sensations. At one moment it may realise one sensation, such as the colour green, while at another moment a loud rustle. The sensations are not connected within the framework of any whole (system). The mist- creature does not perceive the rustle the leaves of a tree make in the wind. Due to the detachment of the experiences, the creature never finds out what “really” happens. The same would go for a creature from space having no preliminary knowledge of the conditions on earth. If matters would only be elucidated to the creature as glimpses, without any system and at random intervals, nothing would be repeated. The creature would have no conception of the reality of earth based on systematic management of knowledge.

Another criterion Niiniluoto sets to science is consistency, which refers to the consistency of both thinking and expression. Scientific thought has to stand up to the test of logic, which identifies the possible contradictions in the system of proposi­tions as well as whether the research follows the law of excluded middle. Linguistic consistency, for its part, refers to the syntactic norms defining the correct use of language.

Objectivity is a requirement characteristic of science in general. For Merton, this requirement refers to the elimination of the interests set by both the researcher and the external world.

What is difficult here is that all scientific facts are interpreted. This goes for sciences (Naturwissenschaften) as well as for the humanities and social sciences (Geisteswissenschaften). In the latter, the special difficulty lies in the fact that the subject matter of the research, such as human behaviour, exists within the same community as the researcher. Therefore, a fully external point of view is impossible in the social sciences.

As Ilkka Niiniluoto points out, the formulation of scientific theory always takes place in a specific intellectual environment, which presupposes the fulfilment of at least the following criteria:

(1). Conceptual presumptions (a given system of concepts is adopted and/or concepts are

interpreted in a given way)

(2). Factual presumptions (specific facts are taken for granted)

(3). Ontological presumptions (a given category of entities is presumed existent)

(4). Methodological presumptions (a specific method is seen as “genuinely” scientific)

(5). Epistemological presumptions (knowledge may only be acquired on specific things)

(6). Value-related presumptions (presumptions relating to the world-view and ideol­

ogy), and

(7). Metaphysical presumptions.

The last-mentioned may take several forms. For example, the presumptions of classical metaphysics concern the origins and essence of all beings. The extreme injustice thesis is one from of that kind of metaphysics (Alexy 2004, 160). A vulgar form of metaphysics is represented by the pseudo-sciences; it is not possible to ver­ify or falsify their propositions. Sometimes a theory includes elements that have not been adhered to from the beginning to the end. Niiniluoto calls these presumptions temporarily metaphysical. They can be changed during the research or replaced by testable presumptions.

All presumptions can distort the results of science.

For this reason alone, the research has to be constantly prepared for criticism. The openness to criticism of the starting points, the research procedure, the results and the publication of them are the essential criteria of true science. A closed system is immune to facts external to it. In the field of theoretical social sciences, Marxist theory has been held as a typical example of a conceptual-logical model. It cannot be shaken by any empirical observations external to the theory or statements based on such.

Similar to Merton, Niiniluoto also sets the autonomy of science as a criterion when drawing the demarcation line between science and non-science. No external instance can define the problem setting, the method used or the results or publica­tion of the research. Attempts in this direction have not been lacking, especially in dictatorships of many forms. In a dictatorship, science has occasionally even been made an instrument of politics and power. This was the case in the real socialism, especially in the Soviet Union and the GDR.

A more difficult problem is bound up in the science policies of modern soci­eties, in which there are attempts to set the “social” goals from outside the instances practising science, like universities. However, an interesting social problem and the problem that can be studied by scientific methods have to be separated from each other. In applied technical and medical research, expectations of results may, with good grounds, emanate from outside science, but in the social sciences the auton­omy of science is different from the hard sciences. Social sciences, which become sensitive to the expectations of the authorities, immediately jeopardise their own autonomy since it is only autonomy that protects the criticality of science.

The list of criteria is completed by the requirement for self-adjustment. This requirement is intertwined with the notion of autonomy. One dimension of auton­omy emphasises that science and only science has the right to identify its defects and errors, as well as the ways through which these defects and errors can be repaired.

All that can be summarised in what I call the scientific attitude introduced by Georg Henrik von Wright. It is not included in the list of criteria compiled by Merton or Niiniluoto, but it has special significance as the background presumption of all science. At its core, the scientific attitude concerns an unforced and spontaneous humility when faced with a given task. Humility is required by consciousness of the fact that nothing in science is final.

As Sir Karl Popper emphasised, science can never achieve the “final truth”. All of its truths are only temporary. In this regard, Popper defended the so-called thesis of verisimilitude. With a substantial degree of simplification, the basic idea is that no scientific proposition can be verified, whereas it can be and often is falsified at some point. By falsifying its own hypotheses, science comes closer to the truth but never quite reaches it. A slightly modified falsification concept does not require that statements could be proven false. It is enough that the propositions are not “testable”. This is one of the dilemmas of science. It is a guarantee of its dynamics but also a measure of its limitedness.

The amount of information in a scientific hypothesis is greater the bolder or more unlikely it originally is, since what the hypothesis tells us about reality is connected to the number of alternatives it gives. Niiniluoto refers to Isaac Levi, who sum­marises the thought in the statement: “A scientist has to gamble at the cost of reality” (Niiniluoto).

The same scientific attitude concerns DSL. However, one special feature of DSL should be brought forth at this point. It has been connected to its practice for as long as there has been the doctrinal study of law in its present form.

Summing up, the criteria of science also include legal research understood as the doctrinal study of law. If one considers it reasonable to question the scientific nature of DSL, the answer has to take a stand on its systematisation, consistency, objec­tivity, openness and autonomy or, in summary, the scientific attitude represented by DSL. No field of science can be detached from these requirements when its scien­tific criteria are put into question. Detachment from the criteria of science amounts to severing the field in question from the long tradition of science.

On the other hand, it does not seem altogether useful to try to define the notion of science once and for all, and then to attempt to fit a given field into the defini­tion arrived at. However, this error has been made time after time. One example is the attempt made by Alf Ross. He had a certain positivistic model of science in mind, and the main task was to formulate a concept of legal research that fits the pre-established scientific criteria. Taking the Rossian criteria of science seriously, legal research is either an empirical or a logico-deductive science.

Attempts like this are expressions of a scientific imperialism, which is foreign to the way in which Ilkka Niiniluoto, for instance, identifies the criteria of science.

There are no general criteria of science that dictate what DSL should be, given that it is objective, critical, autonomous and self-adjusting.

Instead, the thought experiment should be reversed. One should not begin by asking what science is. In the case of DSL, it would mean that DSL is fitted into the Procrustean bed, where either arms or legs are severed. The bed is, of course, of the correct size if, and only if, the patient is measured to fit the bed. The only problem is that when DSL is measured according to this kind of bed, it is no longer DSL.

The times of extreme positivism have now passed, but the lesson provided by them is still vital. One who is interested in the scientific nature of the doctrinal study of law cannot shut himself away in an ivory tower and try to define DSL as anything other than what it is. The status of DSL in the social division of labour is not a question of definition. DSL is a form of social practice and has to be accepted as such, since the conditions for the existence of DSL are bound to nothing other than the societal interests. For as long as people are asking questions about the content of valid law, there will be a need for an activity that provides an answer to this question. At the moment, this activity is as it has been for the last few hundred years.

If this societal fact is accepted as a starting point, the problem of controllability of interpretative statements is important. DSL cannot escape this question and base its existence on the flimsy ground of intuition. What Descartes said about common sense could also be said about intuition: It is an effective force, but the downside is that everyone has it. In order to avoid this trap, the statements of DSL have to be publicly (inter-subjectively) controllable.