User:LegesFundamentales/Encyclopedic perspective and law

Placeholder: Lead (summary of suggested guidelines) Essay interpeting WP:NPOV (in particular: WP:VOICE, WP:MNA) as well as WP:NOT (in particular: WP:ENCYCLOPEDIC, esp. WP:NOTTEXTBOOK, and WP:DUE), and giving editorial advice. Primarily about law, but may be helpful to all humanities.

Introduction

When we write in Wikipedia's voice

If we want to focus on the meat of the issue, we must always trim the fat that is the unnecessarily distanced perspective. To try to chase some sort of false hyper-objectivity by making explicit each frame we are applying at that moment bloats the article (leading to length and undue weight problems) and negates the benefit that compiling many sources has – not ideal, considering concise summary and contextualization are our main value propositions (along with comprehensiveness). It would be a poor choice to emphasize in every article on a societal concept, for example, that whatever is being said should be understood to be strictly from the inside perspective of human beings. The encyclopedia is (usually) not well served by such a formalist approach to imparting its knowledge.

To proceed naively, using whichever point of view comes naturally to us, can lead us down the garden path, too, however. The WP:REFERS editing pitfall, to take a notable example, is where a topic is inelegantly approached from a terminological angle – at the risk of reification (hypostasization) and of missing 'the point'. We must take care that our voice stays pertinent to the reader.

Presenting information in an overly qualified and hyper-reflected way will leave the reader with the impression of glimpsing the substance of the article through a long and unwieldy cardboard tube. True, drilling down to whatever essence or metaphysical construct may come closest to reality is the province of Continental philosophers, and not of humble cyclopaedists. Still, I feel that by always trying to escape any sort of internal perspective (trying to escape having any sort of POV), we would fail to produce an encyclopedia. Either we would reproduce the disjointed plethora of perspectives that exists in the entire human discourse space, sacrificing the unique usefulness the encyclopedia – being a universe of knowledge that is internally unified, even if that necessarily means it is imperfect and limited – on the altar of perfect accuracy; or we will produce a formal, Analytical database that obscures the substantive understanding of reality that is central to the encyclopedic project.

Pertinence, from an encyclopedia,

WP:MNA WP:RNPOV

I don't think an encyclopedia needs to completely avoid the internal perspective; not at all. An encyclopedia – even a general, global one – is an endeavor in practical reason, not an academic revelation.

Caveat

Caveat: I (User:LegesFundamentales, the original author of this essay) am approaching this discussion from the perspective on a law student at a German university. Despite my best efforts, I have blind spots when it comes to legal study, education, and practice; even within Continental Europe. If I make blanket statements that are inaccurate for some places, please let me know, and disregard them if you know better.

The disputed nature of law

There are entire fields – philosophy of law, theory of law, methodology of law – dedicated to the thoughtful reflexion of what "law" is. Is it merely all the individual rules made by the appropriate author? (The decision of who is an authoritative author of law falling outside of the realm of the study and application of law.) Do we speak law into existence by taking one view or another?

A fairly clear and simple norm or rule of behavior that has been established by statute by a legislature that is broadly and routinely obeyed (and this fact is widely recognized) is probably the least controversial form of "law". It is a verifiable social fact, and its validity as law is a matter of explicit constitutional establishment – its inclusion in an encyclopedic summary of what the law factually is, is not going to fail on the basis that it isn't law.

The disputed nature of the study of law

So too is the scholarly treatment of the law thought of in widely diverging ways. Legal education on the Continent is generally provided through a regular course of study at university (not in a law 'school'); in truth, however, it is nonetheless more aptly characterized as professional education than training to enter a research discipline. Accordingly, there are some who believe that the study of law ought to be taught at a professional school or university of applied sciences. The United States system still sets law and medicine apart as scholastic disciplines and professional arts, even though its colleges/universities are less purist than European universities about notionally and institutionally separating research academia from job training.

The subjects variously known as jurisprudence (juristry) and jurisscientia, or legal science, are sometimes considered methodologically independent academic ('scientific') disciplines (which justifies their inclusion at research universities). There is, however, much doubt about this categorization.

Modern legal positivists (see Hans Kelsen's The Pure Theory of Law and H.L.A. Hart's The Concept of Law) – whose views implictly relegate substantive, value-related discussion of law to courts, lawyers (and their professional schools), and the general political discourse – have attempted to preserve a place for the study of law at research universities by re-orienting it around structuralist, analytical inquiry (which Kelsen and company believe is more methodologically rigorous and 'scientific'.)

This stands in contrast to – among many others –

• natural law schools (not so much the thoroughly outmoded schools of divinely inspired law; more so the reason-based natural law theory of the Enlightenment),
• Begriffsjurisprudenz (starting from a formalist ideal of law – then conceptualizing and organizing the terms frequently used in legislation and by courts),
• (American and Scandinavian) legal realism (law has no consistent internal logic – we may only empirically observe and maybe predict outcomes based on external factors),
• and Dworkin's "legal interpretivism" (the "chain novel" model of judge-made law) – along with ontological-hermeneutic approaches (see Heidegger's student Gadamer and his magnum opus Truth and Method; compare and contrast Grice's hermeneutics).

Law faculties (in Germany, at least) have seemingly not reflected critically upon their own approach and assumptions. Accusations of "methodological syncretism", mostly levied by the modern positivists (by which I really mean Kelsen's Vienna school), are most assuredly justified. What they mean to replace it with simply leaves me personally, unsatisfied.

See also

• WP:LAWSOURCE – Essay explaining the nature of different types of references for the topic of law (with a focus on U.S. conventions)
• MOS:LAW