Legal Theory for Legal Empiricists

Abstract

There is a widespread view that one does either theory or empirical work, and that theory and empiricism represent distant concerns, opposing worldviews, and perhaps distinct mentalities or personalities. This prevalent view has deep roots and is also the result of pragmatic and understandable tendencies toward division of intellectual labor. Against this view, this essay suggests that the relations between theory and empirical study ought to be understood as more intimate and that making legal theory an explicit focus can improve empirical scholarship. We pursue this claim by articulating a basis for legal theory and by showing how that basis illuminates both the application and design of empirical research on law. Legal theory, we argue, follows jurisprudence in interrogating the law as a set of coercive normative institutions. The upshot of this approach is a recognition that an interdisciplinary analysis of law must rely on both a theory (explicit or implicit) of the way law's power and its normativity align and an account of the way in which this discursive cohabitation manifests itself institutionally. We thus argue that legal theory is necessary in order to draw fruitfully on empirical research and further claim that legal theory provides guidance both for setting up an empirical research agenda on law and for designing research into specific topics.

The Relationship between Empirical Legal Studies and Doctrinal Legal Research

“…59 Dagan, Kreitner and Kritcheli-Katz note that even Kelsen said that law should be effective -and thereby put empirics at the heart of law's legitimacy. 60 The dependence in the other direction is less obvious, but there to be found. For inasmuch as ELS studies how the law comes into being, and which effects it has, it matters what the law actually is.…”

“…62 An idealised relationship between DLR and ELS thus seems to be one of theory and observation, not unlike that which might be found in other sciences. 63 The lawyer reveals the incentives in the law and suggests likely consequences. The social scientist brings additional psychological and social theory to provide a more developed model of consequences: and then tests it.…”

“…70 In particular, there has been attention to the role of legal theory as a part of the frame for empirical research. 71 However, the involvement of legal theory inevitably gives the research a complex conceptual basis and does not facilitate the delivery of punchy answers to immediate policy questions. This work tends to be less quantitative and more qualitative than mainstream ELS and more focused on empirical validation and investigation of legal-theoretical concepts than on serving policy as it is understood by policymakers.…”

Judicial breakfast as an external factor in judicial decision making in courts

“…The constitution allows the judge discretion to make decisions as they are permitted to develop findings of facts, design remedies for violation of the law, interpret the language of the constitution, regulations, and statutes, and grant injunction relief. As well, the judges are allowed to establish whether the government officials in the executive arm have abused their discretion (Cserne, 2020;Dagan, Kreitner & Kricheli-Katz, 2018). However, the reality is that the judges are constrained on how they exercise these powers as they can't act on their desire.…”

Law and Economics’ Responses to the Threat of Its Initial Success

“…At large-scale cooperation in anonymous groups with large potential gains from opportunism and free-riding, it is indeed risky to invoke and rely on voluntary cooperation/compliance. My main argument is precisely that it is important to use as a starting point of policy making that behavior can be driven by different motives that cannot be reduced to a common denominator (see also Kornhauser, 2002, p. 41 andDagan, Kreitner, &Kricheli-Katz, 2018, footnote 16). Besides, focusing on opportunism and free-riding as the most important collective action problems rather than, for instance, on the process of acquiring sufficient resources from a certain number of actors from a specific population to achieve critical mass that successfully moves forward collective action (Brechin, 2016) by itself demonstrates a leaning toward a rational choice perspective as it centers on selfish behavior.…”