Experimental Jurisprudence

38 Pages Posted: 15 Oct 2020

See all articles by Kevin Tobia

Kevin Tobia

Georgetown University Law Center; Georgetown University - Department of Philosophy

Date Written: August 24, 2020

Abstract

“Experimental jurisprudence” is a novel empirical approach to jurisprudence. This practice has grown into a movement, as scholars increasingly conduct experimental-jurisprudential studies of legal concepts including causation, consent, intent, knowledge and reasonableness. Despite clear progress, the approach’s justification is still surprisingly opaque. To put it most provocatively: Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence” simply surveys laypeople. Experimental jurisprudence seems to miss the mark on two counts. First, the wrong group: Laypeople — with no legal expertise — are a strange population to survey about legal criteria of causation or consent. Second, the is-ought fallacy: Even if surveys of laypeople tell us something about what law is, they do not tell us what law should be.

This essay fills this justificatory gap, providing an articulation and defense of experimental jurisprudence. It argues that although jurisprudence is often considered the domain of legal experts, experimental surveys of laypeople provide crucial and unique insights. Moreover, the collection of this empirical data can, in fact, contribute to normative jurisprudential debates. The essay concludes by arguing that once experimental jurisprudence is appropriately understood, it becomes clear that the practice is not merely consistent with the aims of traditional jurisprudence; it is actually an essential branch of jurisprudence.

Keywords: experimental jurisprudence, experimental philosophy, legal theory, legal philosophy, jurisprudence

Suggested Citation

Tobia, Kevin, Experimental Jurisprudence (August 24, 2020). Available at SSRN: https://ssrn.com/abstract=3680107 or http://dx.doi.org/10.2139/ssrn.3680107

Kevin Tobia (Contact Author)

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