Are There ‘Non-Euclidean Geometries’ for Judicial Reasoning? Epistemological Pluralism facing the Crisis of Legal Formalism

My starting point is that the development of legal knowledge since the Age of the Enlightenment has had much to do with what C.P. Snow called in the Fifties of the last century “[the divide between] the two cultures”: the culture of the humanities on one hand, and the scientific one on the other (they have been also defined as the “culture of letters” and the “culture of numbers”). Since the beginning, the power of numbers have seemed to be far more attractive than the other. A sort of ‘Euclidian privilege’ prevailed in many different fields of scholarship, mainly because the formal method of knowledge adopted in geometry or maths was (and for most still is) intended as the best possible way of reasoning. In order to ensure the law a similar perfection, legal and political scholars hurried to ape the guidelines of epistemic formalism: axiomatization and deduction. From Hobbes to Kelsen, passing through the Ecole de l’exégès and the Rechtsgeschichtliche Schule, jurisprudence tried to work out an ‘Euclidian geometry’ for law and politics, imagining that encoded or somehow positive rules could be a sort of axioms for the new legal scientists. My second point is that however, despite their efforts, the contemporary crisis of normativistic legal positivism together with the success of Dworkinian interpretivism (focusing much more on the judge than on the legislature) suggest that we are at a turning point: a point in which it is not under discussion the shift of jurisprudence from science to the humanities, but rather the concept of science itself. The discovery of incompleteness and undecidability of any formal system (as showed by Gödel’s theorems), as well as other epistemological revolutions which took place in the past century, let us suppose that a pluralistic approach to legal reasoning should be more realistic and profitable than the ‘Euclidean’ methodological formalism. If not (this is my third point) we are destined to a pretty less reasonable condition: the surrender to whatsoever judge’s habit of statutory interpretation, as already indicated by many signs in everyday’s legal experience of lawyers and simple citizens. In the conclusive part of my paper I try to outline a ‘non-Euclidian’ model of arguing in the legal context, inspired by the idea of emphasizing the role of the parties and suggesting the judge how to make use of the parties’ discourses on the meaning of statutes and facts in order to decide the case.