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Part II

To speak of legal science, or a science of law, is to risk serious misunderstanding on the part of those who assume that the only true sciences are the natural sciences, and especially the "hard" natural sciences such as physics and chemistry. This is a contemporary Anglo-American usage; in most other languages, "science" (in German Wissenschaft, in French science, in Russian nauka) has retained its older, broader meaning of a coherent, systematic body of knowledge, combining particular facts with general principles, and is applied not only to the exact natural sciences but also to the less exact social and other humane sciences, including the science of law (Rechtswissenschaft, science de droit, pravovaia nauka).

There is, however, another more serious ambiguity in the application of the word "science" to law, namely, that legal science may refer not only to a body of knowledge about law generated by legal scholars (as the word "physics," for example, refers to a body of knowledge about matter and motion generated by physicists, or the word "geology" to a body of knowledge about the formation of the earth generated by geologists), but also to a body of knowledge generated by the law itself, defining its functions and the ways in which it operates. To say that a given system of law may itself contain, in that sense, a science is by no means to deny that (like medicine, for example) it is also, in its application, an art; it is only to say that principles laid down by its authors and practitioners—legislators, judges, administrators, and others—may expressly define its character, that such principles may be not only statements about law but also statements of law, and that in the Western legal tradition, at least, they are understood to constitute a coherent, systematic body of knowledge relating particular rules and decisions, particular modes of operation, to general legal theories. Even the simplest legal rules—for example, that a certain type of agreement is a legally binding contract, or that to kill another person intentionally and with malice aforethought constitutes the crime of murder—connote general principles of the legal system, such as the principle that contracts give rise to civil obligations enforceable by courts, the principle that some types of homicide are more severely punishable than others, and that certain kinds of distinctions are to be made between civil law and criminal law, et cetera; and these principles are officially declared to be necessary to the achievement of the purpose of law to promote justice and to maintain order. This is only to say that the science of law, like other social sciences, and like the science of language itself, differs from the natural sciences insofar as the participants in legal activities, that is, those who make or apply or administer or practice law, themselves articulate the nature of those activities, and their articulations are an essential part of the science itself. Indeed, in the Western legal tradition the legal actors themselves have for many centuries consciously ascribed to their own declarations of what they themselves are doing the qualities of a systematic, objective, verifiable body of knowledge, a meta-law by which the legal system itself may be analyzed and evaluated.


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Читайте в этой же книге: Работников | Text 1 Why legal history is important | Text 2 Civil law and common law | TEXT 7 JUDGES PART II | TEXT 8 JUDGES PART III | Text 10 the decline of common law | A. State Substantive | B. Federal Criminal Law | A well-regulated militia being necessary to the freedom of a free state, the right of the people to keep and bear arms shall not be abridged. | D. Juvenile Justice |
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TEXT 3 the transformation of english legal science| Part III

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