The EPISTEMOLOGICAL PROBLEM OF THE LEGAL NATURE: A PSEUDO-PROBLEM AMONG JURISTS. A LOGICAL-LINGUISTIC ANALYSIS OF THE CONTROVERSY AROUND MARRIAGE

Abstract

In legal science, especially in legal dogmatics, the methodological practice of trying to determine the nature of legal institutions constitutes a commonplace. At the present day, jurists from all branches of law are still committed to discover and discuss the legal nature of contracts, corporations, professional fees, etc. However, they have not resolved what should be understood by “legal nature”, neither they have been able to agree on the method to determine it. Even less, they have questioned whether such claims are achievable or useful. This paper aims to reveal that such a methodological claim and the debates raised around it constitute, truly, pseudo-disputes between jurists, that is, inauthentic and apparent discussions that are not worth considering and that are motivated, mainly, in logical-linguistic entanglements or misunderstandings. To show our point of view, we will analyze the paradigmatic case of the dispute over the legal nature of marriage, whose conclusions could be extended to the rest of the legal institutes. Finally, this paper adopts a qualitative methodology, based on critical theorizing and reflection from bibliographic or documentary analysis.