Objectivity and the Law’s Assumptions About Human Behaviour

Objectivity in Law and Legal Reasoning, ed. Jaakko Husa, Mark van Hoecke (Oxford: Hart Publishing), pp. 171–193, 2013

TILEC Discussion Paper No. 2011-049

22 Pages Posted: 24 Nov 2011 Last revised: 29 Aug 2015

See all articles by Péter Cserne

Péter Cserne

University of Aberdeen - School of Law; Tilburg Law and Economics Center (TILEC)

Date Written: November 24, 2011

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

Suggested Citation

Cserne, Péter, Objectivity and the Law’s Assumptions About Human Behaviour (November 24, 2011). Objectivity in Law and Legal Reasoning, ed. Jaakko Husa, Mark van Hoecke (Oxford: Hart Publishing), pp. 171–193, 2013, TILEC Discussion Paper No. 2011-049, Available at SSRN: https://ssrn.com/abstract=1964205 or http://dx.doi.org/10.2139/ssrn.1964205

Péter Cserne (Contact Author)

University of Aberdeen - School of Law ( email )

Taylor Building
King's College
Aberdeen, Scotland AB24 3UB
United Kingdom

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

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