Abstract
Recent legal scholarship demonstrates increased attention to empirical research in the design and evaluation of law and the policies and practices of legal authorities. The growth of evidence informed law is an exciting development and one that promises to improve the legal system. In this paper I argue for the particular value of drawing not just upon empirical research methods when evaluating existing policies and practices but upon social science theories. Theory based research provides a basis for imagining and testing different models about how the legal system might operate. I support this argument by presenting research on social science frameworks for legal authority which are alternatives to the currently prevalent instrumental model.
Highlights
During the last 20 years empirical research methods have become increasingly central to the landscape of legal scholarship.[1]
Risk analysis is a nice example of the benefits of empiricism because studies suggest that the use of empirical methods to assess future dangerousness is more accurate than is the use of human intuition
Its underlying ideas extend to all legal systems, irrespective of whether they are common law based like the United States, legislative, as is true in many European societies, and/or mixed
Summary
During the last 20 years empirical research methods have become increasingly central to the landscape of legal scholarship.[1]. Let me give one example that involves psychology – future risk assessment.[4] The legal system relies on predictions about people’s likely future behavior at many points in the system: pretrial detention; sentencing; parole and probation; etc It has been used with a variety of special populations, including juveniles; the mentally ill; and sexual predators. These theories allow the law to expand the framework within which issues of law are considered It is in drawing upon theoretically based social science models of human nature that the law has been especially weak and has a great deal to gain, and not just in the widespread use of research instead of intuition, hunch and supposition. Drawing upon social science theory allows us to imagine that factors not currently within the system could matter and test whether that is the case It provides a method of identifying new issues and a method for testing their importance. This paper will contrast the implications of that theoretical framework to one drawing upon social science and, in particular, psychology
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