Objectivity and the Law’s Assumptions About Human Behaviour

Abstract

Do laws rely on ‘true’ or ‘adequate’ assumptions? Should they? How do these assumptions relate to 'objective' facts, discovered by empirical sciences? What is the role of legal theory with regard to these assumptions?

This chapter analyses a hitherto neglected aspect of law’s objectivity: the epistemic and methodological character of the law’s assumptions about human behaviour. Taking H.L.A. Hart's views on legal epistemology as a starting point, I suggest that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, philosophical theories of earlier ages and scientific knowledge. The task of the legal theorist is to provide a rational and critical foundation for these doctrines. Legal philosophy thus does not only contribute to law’s objectivity through conceptual clarification but also involves the legal scholars into substantive empirical and moral argumentation.

I also discuss the reasons for and challenges to integrating empirical knowledge on human behaviour into legal policy and legal doctrines and point out the limits set by epistemic, institutional, and normative features of law to this integration.

Keywords: objectivity of law, legal epistemology, H.L.A. Hart, behavioral economics

JEL Classification: D03, K00, K40