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(2012) Law, order and freedom, Dordrecht, Springer.

Twentieth century


Cees Maris, Frans Jacobs

pp. 261-309

In Chapter 8, philosophical developments in the first half of the 20th century are discussed, more specifically psychoanalysis, logical positivism, critical rationalism, and hermeneutics. This period was inter alia marked by the growth of applied science, two world wars and an economic depression. The chapter discusses in detail Freud's psychoanalysis. With this method, access can be gained to the human unconscious, a feature of the mind which led Freud to the conclusion that the modernist belief in the foundational nature of human consciousness is an illusion. Consciousness is only a derived effect of the more primary unconscious where the sexual and aggressive drives play a dominant role. In logical positivism the optimistic belief in progress which characterised Enlightenment philosophy dominated: as a consequence of the growth of scientific knowledge, moral emancipation in the direction of individual autonomy would come about too. This requires a liberal social democracy. However, on closer inspection the emancipation ethics of the positivists seems to be at odds with their thesis that norms do not follow from facts. In the legal context, this leads to Legal Realism: law is viewed as a social fact. Critical rationalism improved on some of the weaknesses of logical positivism, but nonetheless remains closely related to its empiricist criterion of science and correspondence theory of truth. In opposition to the absolutist claims of Plato and Marx, Popper emphasises the fallibility of human knowledge. Therefore he advocates an open society, a liberal democracy that allows its citizens to freely exchange critical arguments so that they can learn from their mistakes. Hermeneutics denies the empirical basis that logical positivism and critical rationalism use as the criterion for scientific objectivity, stressing the mediating role of human interpretation. The point of departure of hermeneutics is that human life and its cultural products (such as legal and scientific texts) show a meaningful coherence. Unlike inanimate nature, man is not determined by causes, but guided by reasons or rules. In other words, human beings themselves give meaning to their lives, and this cannot be registered by means of external observation in accordance with the model of natural science. It must be understood from the "inside". The human scientist is capable of this because he is himself also a meaning-giving being. This view restores the academic status of normative legal reasoning, which gets lost in the scientism of positivism.

Publication details

DOI: 10.1007/978-94-007-1457-1_8

Full citation [Harvard style]:

Maris, C. , Jacobs, F. (2012)., Twentieth century: 1900–1945, in C. Maris & F. Jacobs (eds.), Law, order and freedom, Dordrecht, Springer, pp. 261-309.

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