Evidence-Based Jurisprudence: An Essay for Oxford
Analisi e Diritto, 2020
28 Pages Posted: 17 Dec 2019
Date Written: November 25, 2019
This essay (to be published in a symposium on the methodology of jurisprudence), is part of a broader attempt to put some flesh on the bones of “naturalistic jurisprudence.” My general aim in this essay is to show that much contemporary jurisprudence takes a very narrow understanding of the subject matter, and gives priority, to the point of exclusivity, to one methodological approach — analytic philosophy — over all others. Unlike naturalistic analytic philosophy that welcomes ideas and data from other disciplines, the approach that dominates jurisprudence sees legal philosophy as concerned with certain questions that are uniquely philosophical and to which other disciplines have little to contribute. Some have challenged my past characterization of analytic jurisprudence as “isolationist.” My first aim in this essay is to show that this narrow approach is real. I begin by providing some empirical evidence on the narrowness of work in analytic jurisprudence (with special reference to work coming from Oxford). After showing that, I present some ways in which a naturalistic alternative would build on ideas or data coming from disciplines other than philosophy. In addition, I argue for two additional ways in which naturalistic jurisprudence differs from the current dominant approach. First, I suggest it should take the study of legal practice as central to its endeavor; and second, I suggest that legal philosophers themselves may be a relevant subject of study.
Keywords: jurisprudence, naturalistic jurisprudence, methodology, nature of law
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