Experimental jurisprudence

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Experimental jurisprudence (X-Jur) is an emerging field of legal scholarship that explores the nature of legal phenomena through psychological investigations of legal concepts. [1] [2] [3] [4] The field departs from traditional analytic legal philosophy in its ambition to elucidate common intuitions in a systematic fashion employing the methods of social science. Equally, unlike research in legal psychology, X-Jur emphasises the philosophical implications of its findings, such as whether, how, and in what respects the law's content is a matter of moral perspective. Whereas some legal theorists have welcomed X-Jur's emergence, others have expressed reservations about the contributions it seeks to make.

Contents

Background

Experimental jurisprudence (X-Jur) is an outgrowth of the broader experimental philosophy (X-Phi) movement. Emerging in the early 2000s, and focusing initially on the folk concepts of semantic reference, knowledge, and intentional action, X-Phi represented a rejection of analytic philosophy's traditional 'armchair' speculation about common conceptual intuitions. [5] As a similarly empirical approach to the analysis of folk legal concepts developed in the 2010s, the prospect of a novel method of legal theory, 'experimental jurisprudence', was recognised. [6]

X-Jur shares analytic philosophy's interest in a range of questions, including the longstanding issue of whether the existence and content of the law is a matter of social fact alone. [7]  But X-Jur scholarship has argued that philosophers' appeals to the content of folk legal concepts [8] [9] ought to be tested empirically so that, the 'big [philosophical] cost of rely[ing]... on… a concept that is distinct from that used by folk', [10] may be allocated correctly. [11] [12]

Themes

X-Jur exhibits two basic lines of inquiry into, respectively, the folk concepts associated with features of particular laws or legal methods that are common among modern legal systems, and the general folk concepts of law and of rule application or legal interpretation.

One broad X-Jur research agenda concerns topics in 'special' jurisprudence. Legal theory often attributes the conceptual elements of common legal rules to particular ethical theories or to certain descriptive (non-moralistic) sorts of judgment. X-Jur has challenged many of these traditional theoretical understandings. For instance:

Collectively, this line of research suggests that a priori assumptions about the relationship between legal doctrine and associated folk legal concepts call for philosophically informed empirical investigation. [1]

General concept of law

A narrower X-Jur research agenda concerns topics in 'general' jurisprudence, namely, the questions of the nature of law itself and of the application or interpretation of rules in general. This research has reported that, in contrast to traditional accounts of legal meaning, which reduce it to a single dimension, either the rule maker's intention [18] or the rule's text, [19] a range of factors are intuitively at work in the application of rules. [20] [21] [22] Indeed, recent studies suggest that, in line with moralistic accounts of legal interpretation, [23] rule violation judgments may sometimes be influenced by moral appraisals. [24] [25]

The question of whether morality is a prerequisite of legal validity has also attracted empirical scrutiny, with studies exploring both whether the folk concept of law includes Lon Fuller's principles of procedural morality [26] and/or substantive moral principles, such as basic gender and racial equality. Such scholarship suggests that the satisfaction of procedural moral principles is not intuitively critical to legal validity, at least when considering specific statutes. [11] In contrast, consistently with natural law theory, these studies indicate that a statute's substantive morality is intuitively intrinsic to its existence as law. [12]  

Together, these lines of research have challenged the consistency with ordinary language of legal positivism, the view that the law's representation of moral values is ultimately just a matter of political circumstance. [3]

Criticism

X-Jur's commitment to the potential philosophical significance of systematic research into folk concepts has been welcomed by some legal theorists [27] but has also attracted criticism. [28] According to one line of objection, treating folk concepts as a basis for legal philosophy is liable to reduce such inquiry to a 'glorified lexicography' whose results will be culturally contingent, and which will be unable to point to universal and timeless truths. [29] The range of cross-cultural or nationally representative X-Jur remains limited; there are indications, however, that at least some features of folk legal concepts, notably the role of procedural morality, may be found in both culturally and linguistically diverse locations. [30]

A second line of objection focuses on X-Jur that documents laypeople's intuitions. It claims that, for philosophical purposes, the understandings of law and legal concepts that matter are not those of the population at large but rather those of lawyers and legal officials. [31] Analogously to criticism of X-Phi that privileges the 'expert' intuitions of philosophers over those laypeople, [32] this view holds that the shared emphasis on folk legal concepts of both analytic and experimental approaches overlooks the importance of training and expertise in the construction and maintenance of both legal systems and of discrete legal phenomena.

Related Research Articles

<span class="mw-page-title-main">Jurisprudence</span> Theoretical study of law

Jurisprudence is the philosophy and theory of law. It is concerned primarily with what the law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.

In its most common sense, philosophical methodology is the field of inquiry studying the methods used to do philosophy. But the term can also refer to the methods themselves. It may be understood in a wide sense as the general study of principles used for theory selection, or in a more narrow sense as the study of ways of conducting one's research and theorizing with the goal of acquiring philosophical knowledge. Philosophical methodology investigates both descriptive issues, such as which methods actually have been used by philosophers, and normative issues, such as which methods should be used or how to do good philosophy.

<span class="mw-page-title-main">Philosophy of law</span> Branch of philosophy examining the nature of law

Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.

<span class="mw-page-title-main">Morality</span> Differentiation between right and wrong

Morality is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of conduct from a particular philosophy, religion or culture, or it can derive from a standard that a person believes should be universal. Morality may also be specifically synonymous with "goodness" or "rightness".

<span class="mw-page-title-main">Intuition</span> Ability to acquire knowledge, without conscious reasoning

Intuition is the ability to acquire knowledge, without recourse to conscious reasoning or needing an explanation. Different fields use the word "intuition" in very different ways, including but not limited to: direct access to unconscious knowledge; unconscious cognition; gut feelings; inner sensing; inner insight to unconscious pattern-recognition; and the ability to understand something instinctively, without any need for conscious reasoning. Intuitive knowledge tends to be approximate.

Legal positivism is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart.

Legal realism is a naturalistic approach to law; it is the view that jurisprudence should emulate the methods of natural science, that is, it should rely on empirical evidence. Hypotheses must be tested against observations of the world.

<span class="mw-page-title-main">Incompatibilism</span> Contradiction of free will and determinism

The philosophical term incompatibilism was coined in the 1960s, most likely by philosopher Keith Lehrer, to name the view that the thesis of determinism is logically incompatible with the classical thesis of free will. The term compatibilism was coined to name the view that the classical free will thesis is logically compatible with determinism, i.e. it is possible for an ordinary human to exercise free will even in a universe at which determinism is true. These terms were originally coined for use within a research paradigm that was dominant among academics during the so-called "classical period" from the 1960s to 1980s, or what has been called the "classical analytic paradigm". Within the classical analytic paradigm, the problem of free will and determinism was understood as a Compatibility Question: "Is it possible for an ordinary human to exercise free will when determinism is true?" Those working in the classical analytic paradigm who answered "no" were incompatibilists in the original, classical-analytic sense of the term, now commonly called classical incompatibilists; they proposed that determinism precludes free will because it precludes our ability to do otherwise. Those who answered "yes" were compatibilists in the original sense of the term, now commonly called classical compatibilists. Given that classical free will theorists agreed that it is at least metaphysically possible for an ordinary human to exercise free will, all classical compatibilists accepted a compossibilist account of free will and all classical incompatibilists accepted a libertarian account of free will.

<span class="mw-page-title-main">H. L. A. Hart</span> English legal philosopher (1907–1992)

Herbert Lionel Adolphus Hart was an English legal philosopher. He was the Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. His most famous work is The Concept of Law, which has been hailed as "the most important work of legal philosophy written in the twentieth century". He is considered one of the world's foremost legal philosophers in the twentieth century.

Moral reasoning is the study of how people think about right and wrong and how they acquire and apply moral rules. It is a subdiscipline of moral psychology that overlaps with moral philosophy, and is the foundation of descriptive ethics.

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<span class="mw-page-title-main">Dual process theory (moral psychology)</span> Theory of human moral judgment

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References

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  2. ↑ Sommers, Roseanna (2021-07-23). "Experimental jurisprudence". Science. 373 (6553): 394–395. doi:10.1126/science.abf0711. ISSN   0036-8075. PMID   34437107. S2CID   236179587.
  3. 1 2 Prochownik, Karolina Magdalena (2021). "The experimental philosophy of law: New ways, old questions, and how not to get lost". Philosophy Compass. 16 (12). doi:10.1111/phc3.12791. ISSN   1747-9991. S2CID   244057904.
  4. ↑ Flanagan, Brian. "The Burning Armchair: Can Jurisprudence be Advanced by Experiment?". SSRN   4624493.
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  6. ↑ Solum, Lawrence (2014). "The Positive Foundations of Formalism: False Necessity and American Legal Realism". Harvard Law Review. 127: 2464.
  7. ↑ Raz, Joseph (2013). Ethics in the public domain: essays in the morality of law and politics. Oxford University Press. p. 104. ISBN   978-0-19-825837-7. OCLC   880544173.
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  9. ↑ Finnis, John (2020), "Natural Law Theories", in Zalta, Edward N. (ed.), The Stanford Encyclopedia of Philosophy (Summer 2020 ed.), Metaphysics Research Lab, Stanford University, retrieved 2022-09-05
  10. ↑ Plunkett, David (2012-05-29). "A Positivist Route for Explaining How Facts Make Law". Legal Theory. 18 (2): 204. doi:10.1017/s1352325212000079. ISSN   1352-3252. S2CID   143438667.
  11. 1 2 Donelson, Raff; Hannikainen, Ivar R. (2020-04-09). "Fuller and the Folk". Oxford Studies in Experimental Philosophy. Vol. 3. Oxford University Press. pp. 6–28. doi:10.1093/oso/9780198852407.003.0002. ISBN   978-0-19-885240-7.
  12. 1 2 Flanagan, Brian; Hannikainen, Ivar R. (2020-11-16). "The Folk Concept of Law: Law Is Intrinsically Moral". Australasian Journal of Philosophy. 100 (1): 165–179. doi:10.1080/00048402.2020.1833953. ISSN   0004-8402. S2CID   228861665.
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  14. ↑ Kneer, Markus; Bourgeois-Gironde, Sacha (2017). "Mens rea ascription, expertise and outcome effects: Professional judges surveyed". Cognition. 169: 139–146. doi:10.1016/j.cognition.2017.08.008. ISSN   0010-0277. PMID   28889031. S2CID   46741256.
  15. ↑ Sommers, Roseanna (2020). "Commonsense Consent" (PDF). Yale Law Journal. 129: 2232.
  16. ↑ Scalia, Antonin (1997). A matter of interpretation : federal courts and the law: an essay. Amy Gutmann. Princeton, N.J.: Princeton University Press. ISBN   0-691-02630-0. OCLC   35280772.
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  22. ↑ Turri, John; Blouw, Peter (2014-04-16). "Excuse validation: a study in rule-breaking". Philosophical Studies. 172 (3): 615–634. doi:10.1007/s11098-014-0322-z. ISSN   0031-8116. S2CID   254946036.
  23. ↑ Dworkin, Ronald (1986). Law's empire. Cambridge, Mass.: Belknap Press. ISBN   0-674-51835-7. OCLC   12945691.
  24. ↑ LaCosse, Jennifer; Quintanilla, Victor (2021). "Empathy influences the interpretation of whether others have violated everyday indeterminate rules". Law and Human Behavior. 45 (4): 287–309. doi:10.1037/lhb0000456. ISSN   1573-661X.
  25. ↑ Flanagan, Brian; de Almeida, Guilherme F. C. F.; Struchiner, Noel; Hannikainen, Ivar (2023). "Moral Appraisals Guide Intuitive Legal Determinations". Law and Human Behavior. 47 (2): 367–383. doi:10.1037/lhb0000527. PMID   37053387. S2CID   245528891.
  26. ↑ Fuller, Lon L. (2006). The Morality of law. Legal Classics Library. OCLC   271216569.
  27. ↑ Atiq, Emad (2022). "Disagreement about Law and Morality: Empirical Results and the Meta-Problem of Jurisprudence". Jotwell. Retrieved 2022-09-13.
  28. ↑ Himma, Kenneth Einar (2023-05-23). "Replacement naturalism and the limits of experimental jurisprudence". Jurisprudence. 14 (3): 348–373. doi:10.1080/20403313.2023.2208002. ISSN   2040-3313. S2CID   258875256.
  29. ↑ Leiter, Brian (2017-07-05). "Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence". The Methodology of Legal Theory. Routledge. pp. 241–275. doi:10.4324/9781315085944-11. ISBN   978-1-315-08594-4.
  30. ↑ Hannikainen, Ivar R.; Tobia, Kevin P.; Almeida, Guilherme da F. C. F.; Donelson, Raff; Dranseika, Vilius; Kneer, Markus; Strohmaier, Niek; Bystranowski, Piotr; Dolinina, Kristina; Janik, Bartosz; Keo, Sothie; Lauraitytė, Eglė; Liefgreen, Alice; Próchnicki, Maciej; Rosas, Alejandro (2021). "Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law". Cognitive Science. 45 (8): e13024. doi: 10.1111/cogs.13024 . hdl: 10481/70654 . ISSN   0364-0213. PMID   34379347. S2CID   236777491.
  31. ↑ Jiménez, Felipe (2021). "Some Doubts About Folk Jurisprudence: The Case of Proximate Cause". The University of Chicago Law Review Online.
  32. ↑ DEVITT, MICHAEL (2010-12-14). "Experimental Semantics". Philosophy and Phenomenological Research. 82 (2): 418–435. doi: 10.1111/j.1933-1592.2010.00413.x . ISSN   0031-8205.
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