“The relevance of the distinction between legal practice and legal science in the (trans)formation of legal researchers: contribution to a theory of legal knowledge”

Research output: Chapter in Book/Report/Conference proceedingConference contribution


What does it mean to have legal (scientific) knowledge? How should it be built to be accounted as valid in the realm of science? After all, what is the research paradigm for the Ph.d researcher in Law?
The answers to these questions lay within the field of Legal Epistemology, which is often viewed as a synthesis of the existing theories of Law. However, the confusion between a theory of legal knowledge and theories of law not only hinder the formulation of questions capable of challenging the later, but also obscure the research paradigm of the legal researcher, as it stimulates the existence of a practice that searches for its theoretical grounds within itself.
This scenario seems yet to encourage the confusion between legal practice and legal science, as it contributes to a view of apparent identity between the objects upon which the professional, the scientist and the epistemologist of law found their work. Within the civil law tradition and, more specifically on Portuguese Speaking countries, where legal researchers often mirror methods and behaviours used by legal professionals by, for example, relying greatly on manuals and employing “legal opinion” reasoning in their work, this lack of clarity appears to impact the development (and quality) of legal scientific research conducted by Phd candidates.
This presentation offers an overview of the provisional lines of inquiry that I am pursing in my Phd research on the quality of legal scientific research and the progress of Legal Science and aims to assess whether a clearer research paradigm in Law requires (precedingly and necessarily) the improvement of a theory of legal knowledge able to contribute to the distinction between legal professional practice and legal scientific research.
Using the Brazilian legal scientific (postgraduate) production context as background, the proposed analysis will set off from a theoretical model of analysis inspired by Gaston Bachelard´s theory of scientific knowledge - which relies on three conceptual cornerstones: applied rationalism, technical materialism, and epistemological obstacles – to assess the nature of the causes attributed by the relevant literature to the low quality of Brazilian legal scientific research output.
The proposed model – which does not overlook the differences between the object of natural science and that of Law, but which adopts a constructive perspective to recognize both as objects rationally constructed to fit theories and rational schemes -, allows for a deductive approach to be adopted.
The recognition of an epistemological nature to such causes and the possibility of applying the notion of epistemological obstacles to their cognitive elements would confirm my research hypothesis, which states that the development of quality legal scientific research requires the improvement of a theory of legal knowledge capable of contributing to a distinction between legal practice and legal science and, therefore, to a clearer research paradigm for the Phd student in Law.
Original languageEnglish
Title of host publication IVR2022 - WORLD CONGRESS: JUSTICE, COMMUNITY AND FREEDOM - 30th biennial World Congress of the International Association for the Philosophy of Law and Social Philosophy.
Publication statusUnpublished - 8 Jul 2022


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