In this post, I will conclude my extended review of Altwicker & Diggelmann’s helpful taxonomy of legal progress. The fourth and final method they identify is what they call “paradigm shift-talk,” which in turn is based on the influential work of the philosopher of science Thomas Kuhn (pictured below). According to Altwicker & Diggelmann (2014, p. 436), this method defines legal progress in terms of meta-ideals or overarching “paradigms,” i.e. ways of understanding or organizing a given area of law. They are critical of this method, however, because the concept of a paradigm is too vague or “undetermined.” By contrast, I find the paradigm theory of legal progress far more promising, for there is a deeper irony in Thomas Kuhn’s ideas. Kuhn himself created his theory of paradigms and paradigm shifts in order to debunk the notion of linear progress in the natural sciences! To simplify Kuhn’s theory: most scientists are engaged in “normal science” in which they make small or incremental improvements to our stock of knowledge. Over time, however, anomalies and unsolved problems begin to build up. According to Kuhn, progress occurs through scientific revolutions, when one paradigm–the old way of framing problems–is replaced by an entirely new way of seeing the world. (For a deeper summary of Kuhn’s ideas and his notion of progress, see the entry for Thomas Kuhn in the Stanford Encyclopedia of Philosophy (available here), and for an analysis of Kuhn’s ideas from a legal-theory perspective, see pp. 1-8 of my 2010 paper “Coase’s paradigm.”) In future posts (after the Christmas break), I will explain why Kuhn’s theory of paradigms might offer us a better way of conceptualizing legal progress (or the lack thereof!).
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