50 Pages Posted: 15 Oct 2020 Last revised: 17 Feb 2021
Date Written: February 1, 2021
“Experimental jurisprudence” is a novel empirical approach to jurisprudence. This practice has grown into a movement, as scholars increasingly conduct experimental studies of legal language and concepts including causation, consent, intent, knowledge and reasonableness. Despite its 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, twice. First, laypeople—with no legal expertise—are a strange population to survey about legal theory. 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 Article fills this justificatory gap, articulating and defending experimental jurisprudence. Experimental jurisprudence, appropriately understood, is not only consistent with traditional jurisprudence; it is an essential branch of it.
Keywords: experimental jurisprudence, experimental philosophy, legal theory, legal philosophy, jurisprudence
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