Taming Law: The Risks of Making Doctrinal Analysis the Servant of Empirical Research

Abstract

Law is not a science, and its relationship with science is not always easy. Empirical Legal Studies, a relatively new movement in law schools and one that is being pushed by some European research funders, including that of the Netherlands, aims to bring legal and scientific research closer together. There are certainly practical advantages which can be achieved by this, but the closer two methodologically distinct disciplines come to each other, the greater the force that they may mutually exert, changing both their own nature and that of the other. The amount of social science that is done in law schools is but a small part of the total, so that the effects on social science as a whole of incorporating more law may be limited. However, the effects on law could be greater, and its evidence-free, truth-indifferent, essentially rhetorical character could be marginalized. That may be exactly what scientifically minded research funders aim at: reining in the narcissistic but epistemologically idiosyncratic practices of the legal wordsmith in favor of more conventional contributions to the advancement of knowledge about the world. On the other hand, textual analysis and critique of judgments and legislation – law, for short, or, more precisely, doctrinal legal research (DLR) – contributes unique elements to the world. Most banally, it provides a theoretical basis for the empirical part of empirical legal studies. It also plays an expressive role: liberated from the need to measure, the legal researcher can unpack the meaning of words and reveal their subtexts and the interests they represent, without needing to quantify their consequences. Concerns and values too diffuse, qualitative, complex, or ambiguous to be easily assessed by empirical science, but which are genuinely felt, and are embodied in the text, can be held up for scrutiny. In doing this DLR adds popular legitimacy to the legal process, taking it partly out of the hands of experts and giving a voice to the subjects of law. Perhaps that is why technocratic research administrators are so keen to get it under control. In what follows I try to show DLR’s relationship to social science, and argue that while they can be meaningful for each other, we should be wary of allowing legal writing to be subordinated to the short-term needs of empirical research, and should not lose faith in the value of traditional DLR on its own theoretical terms – for neither empirical social science, public discourse, or the political process of law-making can proceed properly without it.