Common Sense and Legal Science

Abstract

The notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either nave or dogmatic. Because nineteenth-century American legal theorists did describe law as a science, some modern scholars have interpreted nineteenth-century "legal science" as an attempt by a legal elite to obscure the inherently political nature of legal doctrine. Other scholars have defended the ability of legal reasoning to yield necessary and certain conclusions, but both groups of scholars assume that achieving legal certainty was the goal of legal science and disagree only as to whether such a goal was intellectually justified. This Note challenges that assumption by suggesting that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. These theorists conceived of themselves as legal scientists because they believed they could discover legal principles through the same inductive, empirical methods that yielded discoveries in the natural sciences.