Metodologia i paradygmat polskich szczegółowych nauk prawnych
Journal Title: Transformacje Prawa Prywatnego - Year 2018, Vol 3, Issue 3
Abstract
This paper reports the results of an empirical assessment of the methodology of Polish legal doctrine (legal dogmatics, ‘black letter law’). The data consisted of 729 reviews of dissertations submitted to the Polish universities with the view to obtain a PhD degree in law. The reviews subject to the assessment were composed between 2011 and 2017. The results show that there exists a dominant methodological paradigm that is focused on three distinct research methods: dogmatic, historical and comparative, with the latter two methods providing supporting functions for the first. The content of this paradigm has been carefully reconstructed and analyzed. Following this analysis, the author indicates the historical causes of the paradigm’s dominance. Many of those causes are common in the entire Europe; however, in Poland there were additional factors at play that further deepened the unilateral development of legal research. The historical analysis facilitates a comparison of European legal science with its American counterpart, showing that during the 20th century a paradigm shift (scientific revolution) occurred in the U.S. The final part of the paper presents an alternative paradigm based on a research method called the functional method. It assumes that the subject matter of fundamental research in law consists in well-defined legal phenomena, and not in legal norms (rules) which are only one of the many factors influencing legal phenomena. This alternative may serve as reference for those who conduct research that transcends the traditional boundaries of legal dogmatics (doctrine). The author discusses the relations between the dogmatic method and the functional method, as well as the main point of reference for the alternative paradigm: the multidimensional conception of law. The discussion that follows shows that it is methodologically necessary to use both dogmatic and functional methods, resulting in an integrative paradigm for legal science that includes both ‘internal’ and ‘external’ perspectives. The author argues that the key to scientifically rigorous legal research lies in the duality of empirical and normative aspects that are inherent in law and legal phenomena.
Authors and Affiliations
Dawid Van Kędzierski
Keywords
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