Rule of law and legal epistemology

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Abstract

In the positivistic conception of law, sources of law (statute, precedent) are strictly distinguished from other legal materials such as doctrine. Courts as well as academia are, however, beginning to recognise the legal relevance of doctrine and case law of lower courts.
This acceptance of such epistemic sources is justified within the rule of law if we recognise that courts and legislators do not create law in a vacuum, but rather build on a prior body of legal knowledge. This is relevant to legal argumentation and legal methodology, as it explicates that we have to take epistemic sources into account. This approach is supported by the recent epistemological recognition of testimony as source of knowledge.
The epistemological approach to law offers an explanation to the recognition of precedents as source of law, and the authority of non-binding texts, thereby being suitable to a multi-level legal order where authority is more fluid than in traditional positivism.
Original languageEnglish
Title of host publicationLegal argumentation and rule of law
EditorsEveline Feteris, Harm Kloosterhuis, José Plug, Carel Smith
Place of PublicationThe Hague
PublisherEleven International Publishing
Pages193-204
Number of pages12
ISBN (Electronic)978-94-6274-597-1
ISBN (Print)978-94-6236-702-0
Publication statusPublished - 26 Sep 2016

Keywords

  • epistemology
  • legal method
  • doctrine

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  • Cite this

    Tjong Tjin Tai, E. (2016). Rule of law and legal epistemology. In E. Feteris, H. Kloosterhuis, J. Plug, & C. Smith (Eds.), Legal argumentation and rule of law (pp. 193-204). Eleven International Publishing. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2958144