Dorian Guinardlecturer in public law at Sciences Po Grenoble and the CESICE laboratory

How would you define objectivity in your discipline?

The problem of objectivity in the science of law, a classic issue in doctrinal debates in the legal sciences, requires some preliminary semantic and conceptual clarification.

Leaving aside jusnaturalisms - i.e. various conceptions postulating that there is a natural law, of multiple origins and characteristics (god, nature, etc.) - by nature, dare I say it, subjective, the different conceptions of the science of law are divided between positivists and proponents of an academic science of law, and objectivity has a shifting place in academic discourse.

Among positivists, we classically distinguish normativists (of whom H. Kelsen is the best-known figure) - according to this school, law is summarily a set of ideal entities endowed with an obligatory value (norms) - from realists (American, such as J. Frank, English, Scandinavian (e.g. A. Ross), Italian (R. Guastini) and French (M. Troper)), who assume, without necessarily denying, the existence of an ideal entity. Frank, English, Scandinavian (e.g. A. Ross), Italian (R. Guastini) and French (M. Troper)) who assume, without necessarily denying the existence of natural law, that it is only possible to empirically and objectively describe positive law, the sole object of study.

What positivists have in common is a conception of the science of law that implies a clear distinction between the science of law and its object, which in turn implies that this object must be conceived as an objective reality, that it must be described by means of propositions that are capable of being true or false (and therefore verifiable by experience), and that the language of science - which is a discourse - cannot contain prescription(s). This conception of the science of law presupposes the total prohibition of all value judgments, the logical consequence of objectivity. 

The distinction between facts - which can be empirically described - and values, which remain intrinsically subjective and therefore beyond empirical description, is essential in any attempt to construct a science (which is itself empirical), it being understood that axiomatic sciences do not fall within this framework. For some realists, including a number of Scandinavians and specifically Alf Ross, the science of law must therefore participate in objectivity and be built on the model of the natural sciences, primarily physics.

For other academics who do not define themselves as positivists, the science of law in the sense of "academic discipline" is an academic discourse, produced by teachers-researchers, and may well contain value judgments, for example an analysis of positive law accompanied by proposals for the improvement of constitutional, legislative or regulatory provisions, or a more or less frontal critique of the scope of a jurisdictional decision. Consequently, academic discourse (as defined above) cannot be objective and only expresses - strictly speaking - the subjectivity of the author who produces it (the discourse may be relevant from a political point of view, but it cannot, from a positivist point of view, be qualified as scientific).

Is researcher neutrality possible and desirable?

The question of the desirability of neutrality imposes a value judgment on my part: the neutrality of the researcher in his professional approach - i.e., the establishment of hypotheses, empirical verification protocols and the formulation of conclusions - is obviously desirable from my point of view, as it is theoretically consubstantial with the researcher's office. Without it, the researcher would no longer be a researcher, and his or her work (which would no longer be work) would simply be a discourse of opinion.

Neutrality is possible in the implementation of the above-mentioned protocols. It is not, however, in the conclusions, since the latter, which require us to look at the facts, imply an interpretation by the researcher, and therefore a form of subjectivity (just like the choice of methods, which presuppose, upstream of an experiment, a necessary subjectivity). The fact that the researcher, in particle physics for example, does not take a political or moral view of the behaviour of elementary particles in a specific frame of reference is not synonymous with neutrality, but only with political or moral neutrality: he retains a degree of subjectivity in his apprehension of the phenomena observed (as in the choice of the methods used to conduct his experiment).  

So neutrality in the sense of absolute objectivity (a pleonasm, I agree) is not a real phenomenon in scientific work. Which isn't a (real) problem, by the way, because scientific advances can accommodate the subjectivity inherent in all human activity.

How important are methods to you as a researcher? 

First of all, we need to define which method(s) are intended or used to answer this question. Many methods are criticized in the social sciences (but also in physics and biology), precisely because of their lack of precision, their shortcomings or their scope.

In the field of legal research, I apply the criteria of the realist theory of interpretation and, more generally, of empiricism, focusing solely on describing positive law and the ways in which it is created. Method is therefore central to all scientific work.

Could you present an example of research, ideally from your own work, to illustrate the issues and tensions surrounding objectivity and neutrality in your discipline? 

A recent example of the tensions arising from my work can be found in the litigation surrounding phytopharmaceutical products and their danger to the environment in the broadest sense. A description of positive law inevitably leads to a feeling that there are gaps in the law to protect both human health and other living organisms. 

The neutrality of the researcher means that these shortcomings must be brought to light, without making value judgements about their implications, i.e. the massive destruction of biodiversity - some will say that this is a value judgement on my part, and they'd be right, but this post is not a scientific work. This is a complicated exercise, as the boundary between description and prescription, beyond the temptation to cross it to mobilize apathetic opinion on the subject, is sometimes difficult to identify.