Experimental jurisprudence (X-Jur) is an emerging field of legal scholarship that explores the nature of legal phenomena through psychological investigations of legal concepts.
The field departs from traditional analytic
legal philosophy
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 val ...
in its ambition to elucidate common intuitions in a systematic fashion employing the methods of
social science
Social science is one of the branches of science, devoted to the study of societies and the relationships among individuals within those societies. The term was formerly used to refer to the field of sociology, the original "science of soc ...
. Equally, unlike research in
legal psychology
Together, legal psychology and forensic psychology form the field more generally recognized as "psychology and law". Following earlier efforts by psychologists to address legal issues, psychology and law became a field of study in the 1960s as p ...
, X-Jur emphasises the philosophical implications of its findings, notably, for questions about 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.
Background
Experimental jurisprudence (X-Jur) is an outgrowth of the broader
experimental philosophy
Experimental philosophy is an emerging field of philosophical inquiry Edmonds, David and Warburton, NigelPhilosophy’s great experiment, ''Prospect'', March 1, 2009 that makes use of empirical data—often gathered through surveys which probe ...
(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
Analytic philosophy is a branch and tradition of philosophy using analysis, popular in the Western world and particularly the Anglosphere, which began around the turn of the 20th century in the contemporary era in the United Kingdom, United Sta ...
's traditional 'armchair' speculation about common conceptual intuitions. 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.
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
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
is a matter of social fact alone. But X-Jur scholarship has argued that philosophers' appeals to the content of folk legal concepts ought to be tested empirically so that, the ‘big
hilosophicalcost of rely
ng.. on… a concept that is distinct from that used by folk’, may be allocated correctly.
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.
Specific legal concepts
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:
* It has been argued that empirical data about people's ordinary causal judgements supports a model of legal
causation that, contrary to legal doctrine, is not purely descriptive in nature but which features a role for moral judgements about norms.
* Studies on professional judges' ascriptions of criminal intent (
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
) have been reported that suggest that, just like folk ascriptions, judicial ascriptions of intentional action (guilt) are affected by the moral valence of the ''consequences'' of the acts in question.
*Ordinary people have been found to focus on the conditions that are perceived to be essential to
consent
Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
and so may not consider an individual's consent (to sex, for example) to be nullified by the violation of a condition that the individual herself considers to be a prerequisite. This result has been taken to explain courts' failure, in variety of contexts, to apply the autonomy-based model of consent to which many
ethical theories
Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of morality, right and wrong action (philosophy), behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, alo ...
subscribe.
*Many legal theorists and judges argue that statutes (and constitutions) should be construed according to their 'ordinary meaning', as determined by
dictionaries
A dictionary is a listing of lexemes from the lexicon of one or more specific languages, often arranged alphabetically (or by radical and stroke for ideographic languages), which may include information on definitions, usage, etymologies, p ...
or
corpus linguistics
Corpus linguistics is the study of language, study of a language as that language is expressed in its text corpus (plural ''corpora''), its body of "real world" text. Corpus linguistics proposes that a reliable analysis of a language is more feas ...
. Studies have been reported that suggest that ordinary people's ascriptions of linguistic meaning may diverge from both these sources.
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.
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 or the rule’s text, a range of factors are intuitively at work in the application of rules. Indeed, recent studies suggest that, in line with moralistic accounts of
legal interpretation, rule violation judgments may sometimes be influenced by moral appraisals.
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
Lon Luvois Fuller (June 15, 1902 – April 8, 1978) was an American legal philosopher, who criticized legal positivism and defended a secular and procedural form of natural law theory. Fuller was a professor of Law at Harvard University for many ...
's principles of procedural morality
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.
In contrast, consistently with
natural law theory
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacted ...
, these studies indicate that a statute’s substantive morality ''is'' intuitively intrinsic to its existence as law.
Together, these lines of research have challenged the consistency with ordinary language of
legal positivism
Legal positivism (as understood in the Anglosphere) 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 de ...
, the view that the law’s representation of moral values is ultimately just a matter of political circumstance.
Criticism
X-Jur's commitment to the potential philosophical significance of systematic research into folk concepts has been welcomed by some legal theorists but has also attracted criticism. 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. 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.
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. Analogously to criticism of X-Phi that privileges the 'expert' intuitions of philosophers over those laypeople,
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.
References
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Philosophy of law