The disadvantage of this otherwise rich Anglo-American tradition is that the actual (as opposed to the ideal) techniques employed in legal reasoning both today and yesterday have not, perhaps, been investigated in the depth they deserve. Or, put another way, techniques such as induction, deduction, syllogistic logic and analogy have perhaps been accepted at face value without proper investigation by the lawyers into the viability of transferring these scientific methods into law. There are, let it be said at once, honourable exceptions to this lack of literature. Yet often these exceptions have not been able to be incorporated directly into a foundational or other positive law subject. This is a serious omission, because the reasoning techniques employed by judges are as much a part of the ultimate solution as any legal precedent or statutory text. It has already been seen how judges can use quasinormative concepts such as ‘interest’ or ‘expectation to move from a
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The location of a viewpoint inside or outside of law, and its precise positioning within either domain, are by no means the only questions that need to be considered with regard to the theoretical perspective to be brought to bear by the intellectus on the res. The manner in which the interrogation of the phenomena to be studied is to be conducted constitutes ‘a linchpin of the research’ (Quivy and Van Campenhoudt, Manuel de recherche en sciences sociales, 2nd edn, 1995, p 85). Perhaps a change of metaphor is in order since the term ‘theoretical perspective’ is too general. In addition to locating a viewpoint, the researcher must be aware of the various ways in which one can think about, and study, social reality…

§ 1 Introduction: natural sciences and human sciences

The problem of the various schemes of thought that might be utilised in social science research can be viewed in the context of a larger debate between natural and social science. Is it possible to apply the label of ‘science’ when it

comes to knowledge of human facts? The problem is a complex one but essentially has its foundation in the difference between objects in the sense of empirical phenomena independent of humans and humans in the sense of objects of research. Clearly, when humans are the objects of their own study the relationship between intellectus and res becomes much more problematical. Not only is the behaviour of humans itself complex and cultural contexts so diverse, but the researchers themselves could be said to be actively influencing the behaviour and predictability of their object of research in as much as their own scientific investigation is part of the behaviour being investigated. This merging of the intellectus and the res can deprive social ‘science’ of its criteria of validity since it can easily become impossible to falsify a ‘scientific’ hypothesis (cf Karl Popper). In contrast a theory explaining the orbit of a comet and predicting its return to the vicinity of the Earth can be, at least in part, validated by observation.