Fundamentos del derecho y fundamentos del conocimiento del derecho

Abstract

The recent discussion about foundations of scientific knowledge has affected the social sciences and the knowledge of law. The traditional answers, those of the empiricist and of the rational intuitionists, have been questioned and we could talk of a “crisis of the justificationist model”.
In the foundation of juridical knowledge there are two basic questions: Are there basic statements in the legal science? If so, how are they justified? However, most of the proposed solutions refer not to these questions, but rather to the problem of the normative foundations of the law as a system of norms. In fact, Kelsen´s “basic norm” seems to be a foundation both of the law and of its knowledge, which creates a typical source of confusion.
Two alternatives are analyzed in this article: Are the Statements that constitute the foundations norms or are they theoretical statements? According to the first, legal scientists formulate normative statements and not theoretical ones. The question is, then, how to justify the basic norms, whether by reason alone or with empirical help. According to the second, theoretical statements can justify the validity of the norms. If that is not possible, then the only thing that can be done is to justify the knowledge of the law, but not the law itself.
Another interpretation would be to consider both justifications as parallel though not as identical, taking the basic statements of the legal science as corresponding to the basic legal norms. The normative language about the norms would be isomorphic. According to this view, the unity of legal science is a “reflex” of the systematic character of the legal “reality”. After pointing out several objections to this view, the author considers a possible solution, offered by Kelsen´s neo-Kantian version, that holds that the conceptual apparatus used to describe the legal norms is an epistemological category necessary for the knowledge of legal reality. The author carefully analyzes the consequences of this thesis and concludes that it is only a rationalist version of ‘justificationism’, open to the standard objections made to all models of this sort.
[Javier Esquivel]