The Draft of Say Goodbye to the Assumed Jurisprudence
Wen-Cheng, Huang*
In the beginning, legal jurisprudence is the art of explaining the words or the sentences in the context, and we call it literal approach. While, with time goes by, the historical approach, the purposive approach and the approach of legislative in turns went on the stage of explaining law. Whatever their rationales are based on the philosophy, history or the principle of democracy, they all have a common defect: jurisprudence relied on assumption without fact.
In principle, each branch of social science shall be based on the assumption and its supporting evidence, while it is really hard to find in the area of law. Indeed, we do assume some goals behind the rules to improve some unfair or unjust social situations. However, do we usually examine those assumptions set up in the context of statute by social studying methods? Yes, we do have some relevant studies but it is not the mainstream of legal approach.
In my personal opinion, there are three lays of researching legal knowledge:
Firstly, not limited in gaining the fact from the judgments, we shall combine the other studies of social sciences to discover the ground of law and its proper interpretation. Thus, what is the fact? How can get the full version of fact? I suggest that a study of law and sociology could be the solution of reaching the full understanding the socio-economic context of law.
Secondly, besides building the assumptions or goals behind the statutes, is it also necessary to examine the effect of those assumptions through the social evidences? If so, the goal of the rules shall be examined and consequently be valued with the other conflicting goals or interest.
Finally, we make clear the fact and the real effect of goal/strategy/policy, and then we can start to discuss how to interpret the law.
* International Master Student of European Law School Program of University Maastricht in Netherlands, Master of Law (private) in National Taipei University in Taiwan.
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