The Empirical Foundation of Normative Arguments in Legal Reasoning

Abstract

While empirical legal studies thrive in the U.S., this is not necessarily the case elsewhere. Yet even in the U.S., the way in which empirical work is useful for normative legal arguments remains unclear. This article first points out the junction between empirical facts and normative arguments. Both teleological and consequentialist arguments, in one of the premises, require “difference-making facts” which point out causal relations. Much empirical research makes causal inferences and thus constitutes an essential part in teleological and consequentialist arguments, which are typical normative arguments in legal reasoning. This article then offers a descriptive theory of legal reasoning. Although some empirical research does not make causal inferences, it still falls within the domain of legal scholarship. This is because describing valid laws is a core function of doctrinal studies of law, and sometimes only sophisticated empirical research can aptly describe laws.

Keywords: Difference-making facts, teleological arguments, consequentialist arguments, causal inference, institutional behavior, efficacy of law, doctrinal studies of law