Does Legal Scholarship Need an Empirical Turn?
21 Pages Posted: 5 May 2010 Last revised: 6 Sep 2011
Date Written: April 1, 2010
In theory, the empirical and normative realm are analytically distinct spheres. It is not possible to draw conclusions, without making further qualifications, on what should be from what actually is. At the same time, norms do not say anything about the state of the reality. This theoretical distinction leads to a division of labor in the academic debate. Social scientists perform research on social facts, while legal scholars focus on normative valuations. In practice, however, the empirical and the normative sphere are not as distinct as they appear to be in theory. Normative judgments often depend on factual circumstances. Therefore, empirical knowledge plays a crucial role in legal interpretation and the development of legal theories. Drawing from examples from German constitutional law, this contribution seeks to show that legal interpretation is often based on questionable assumptions about reality.
In a second part, the paper analyzes how empirical knowledge can be integrated into the legal discourse. In this context, two models are discussed. One proposes that lawyers interpret social facts on their own. The other seeks to outsource the analysis of social facts to social scientists or expert witnesses. However, both proposals encounter problems: on the one hand, lawyers do not possess the methodological capacity for an empirical analysis. On the other hand, many empirical studies contain hidden normative judgments that might influence legal decisions if the deciding judges are not aware of them. The article thus proposes a middle course for both legal practice and legal scholarship.
Note: Downloadable document is in German.
Keywords: legal theory, empirical legal studies, constitutional law
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