I.Lakatos: « Falsification and the methodology of scientific research programmes », in: Criticism and the growth of knowledge (I.Lakatos und A.Musgrave eds.), Cambridge, 1970. Vittorio Villa: « Theorien der Naturwissenschaften und Theorien der Rechtswissenschaften. Modelle und Analogien”, presented at the 11th World Congress of Philosophy of Law and Social Philosophy (Helsinki, August 1983). I would agree with these positions if we consider the nature of research in the social sciences or humanities, considering that theories are more descriptive and evaluative than testable by established verification tools: tests, experiments, etc. And indeed, modern law is configured by the balance of power, if you look at its main author: the state. Nevertheless, Kuhn can be considered relevant in other respects. It allows for a reflective attitude towards legal research and education, law and power (Campbell 1974, as discussed by Cotterrell 1995, pp. 53-54). One reason for this is that a paradigm, with its particular tools of observation, analysis, interpretation and reasoning, can be seen as a means of understanding the social events and developments to which the law responds. This allows them to order them. Thus, a paradigmatic outline of legal research would make it possible to analyze a particular legal order of social interaction on the basis of certain beliefs, values and techniques, and since the nature of social interaction differs in time and space, the order also differs.
A paradigmatic overview of legal research allows the correct analysis of legal reactions by taking note of the environment of law (society) that produces facts, events and developments. It may not be possible to formulate a paradigm, but the “paradigmatic thought process” allows for a means of introspection in legal research in the context of social structures. According to Kuhn, a scientific paradigm suggests a consensus on hypotheses that makes it possible to formulate a problem and develop arguments and solutions to the problem. A paradigm refers to “a whole constellation of beliefs, values and techniques, etc., shared by members of a particular community” (Kuhn 1996, p. 175).4x This is one of the two meanings he attributes to the scientific paradigm, as indicated in his postscript to the second edition (1996, pp. 174). In fact, the term “paradigm” remains ambiguous, and Kuhn later referred to “example” to distinguish the narrow meaning of the paradigm from the broader meaning, which he called the “disciplinary matrix” (1996, pp. 187, 182). See also Cotterrell 1995, p. 45.
In this article, I stick to the term paradigm. A paradigm represents the body of knowledge and allows scientists to work with the body of knowledge to make truth claims. It provides theoretical and practical tools. It determines what needs to be observed and is the subject of scientific studies. In doing so, it excludes other possibilities. A paradigm thus represents a preselection that defines the scientist`s playing field, so to speak, in terms of consolidated scientific expectations. It follows that the paradigm is informative about the nature of the research questions and how these questions should be formulated in order to generate answers from the paradigm. It also provides insight into how to interpret the results of scientific research – the answers.
In short, a paradigm involves the tools of observation, analysis, reasoning, and interpretation in relation to a particular body of knowledge in relation to its field of analysis. A theoretical distinction between the concept of modernity in two phases, the first and second modernity, makes visible how structural changes affect law and legal research and shows the limits of the assumptions mentioned above.14xAdmittedly, the distinction between first and second modernity allows a differentiation between types of processes and developments that are nevertheless related. These changes are constituted by the side effects of the successes of the first modernity and characterize the second modernity. It may be that the hypotheses remain valid, but more exclusively, because they struggle with these side effects as if they were abnormalities. Even though we are used to the law having problem-solving potential, we see law as a division or attribution of responsibility, which is the subject of much legal research. Luhmann (1994, p. 139) has already pointed out the potential for creating problems in the law. Most legal research focuses on the analysis of what happens in practice. In other words, most of the research focuses on the analysis of case law and legislation. More abstract: Legal research focuses on what has produced the problem-solving potential of the law and how these productions fit into the system from which they originate. It makes legal research a theory integrated with practice because it follows practice and imitates its methodology. An important aspect of law is its contribution to the attribution of responsibility through legal concepts such as rights, obligations, responsibilities, etc.
Responsibility is assigned on the basis of the interpretation of a constellation of facts, and the interpretive structure is primarily an “if. then… structure (Francot-Timmermans, 2008, p. 93, referring to Luhmann, 1997, p. 197); a linear structure of causality. Facts are acts (or omissions) of legal acts or agents. What they do (or don`t) determines causality and thus the attribution (or non-attribution) of responsibility. To put it simply: if actor A can (not) be considered to have caused X, then responsibility can (not) be attributed. In doing so, he reproduces the linear system of early modernity (Lash, 2003).
The distinction between public and private began to blur when the term “social quaestia” or, in Marxist terms, “impoverishment” is called in the Netherlands. It denotes the extreme poverty and social immobility of the working class across Europe at the end of the era of modernity. This situation eventually led to social democracy and culminated in the welfare state.11x This phase is considered a phase of early modernity, as the production and distribution of wealth remained the central characteristic. Law has not only codified important concepts of modernity into manageable rules, but has also been used as a tool to shape society as prescribed by the state. It has seen the rise of socio-economic rights, which has allowed for effective use of civil and political rights. It provides for a comprehensive social security system based on the law, as well as the introduction of numerous legal measures to protect the weaker party in all types of contractual arrangements. In more abstract terms, we have seen the legalification of an ever-increasing variety of social interactions with the aim of shaping social interaction in a rules-based “designed society”—perhaps an attempt to judge context. The first developments in European cooperation can also be understood in this way. To the extent that legal research aims to examine problems within the frame of reference, these can be explained in the usual way, and legal research (at the incident and structural level) mimics legal practice in its case study method, applying the sequential tools of observation, analysis, argumentation and interpretation (Campbell 1974, p.
22; Wallace, 1978, p. 234). It is as if nothing had happened, so to speak. However, when problems arise at the level of social structures, the fundamental belief in the potential of law is called into question; these developments cannot be explained, but become “Kuhn anomalies”. These anomalies can be explained by a reflexive attitude towards the assumptions of the law, and this can occur when the subject matter of the investigation is not limited to the law itself, but also involves its environment where and when these anomalies occur in order to understand these structural problems; In order to understand where these facts came from, what brought these facts to light? Social theory is a means, complementary to legal theory and legal knowledge, of understanding the new problems facing modern law. There is a tacit understanding that the problem-solving potential of law is focused on specific, temporal and local problems. Modern law is therefore oriented towards modern problems. Making these problems and their context explicit contributes to a more complete description of the frame of reference for modern legal research, as they reveal their basic assumptions. Modern law and its studies are firmly rooted in the nation-state as an exclusive and global social unit. It designates not only a particular jurisdiction and paternity, but also implies a mode of observation, analysis, argumentation and interpretation; a certain type of research. According to Beck, he refers to the idea that `modern society` and `modern politics` [but also modern law (UdV)] can only be organised in the form of nation-states” (2006, p. 2006, p.
1).
