Falsifying falsificationist legal theory - a refutation of Bernhard Schlink’s “interpretations as hypotheses”

A number of attempts have been made to conceptualise legal reasoning along falsificationist lines. This paper criticises a recent one by Bernhard Schlink. After familiarising the reader with falsificationism, I argue that falsificationism is premised on an epistemological asymmetry between singular observation statements and universal hypotheses, and that absent such an asymmetry in the context of statutory interpretation, framing jurisprudence in falsificationist terms is unwarranted and misleading. To get off the ground, legal falsificationism would need to combine with some kind of broadly intuitionist moral cognitivism, but even then, it would still misrepresent what is going on in legal reasoning. The arguments in this paper apply mutatis mutandis to all falsificationist theories of legal and ethical reasoning. I point to some by Albert, Canaris and Larenz