What Is Wrong with Empirical-Legal Research into Victimhood? A Critical Analysis of the Ordered Apology and the Victim Impact Statement.

Abstract

The central question in this article is whether an empirical-legal approach to victimhood and victim rights could offer a sufficient basis for proposals for reform of the legal system. In this article, we choose a normative-critical approach and raise some objections to the way in which part of such research is currently taking place, on the basis of two examples of research in this field, one dealing with compelled apologies as a remedy within civil law and the other with the victim impact statement within criminal law. In both cases, we argue, the strong focus on the measurable needs of victims can lead to a relatively instrumental view of the legal system. The legal system must then increasingly be tailored to the wishes and needs of victims. Within this legal-empirical, victim-oriented approach, there is little regard for the general normative principles of liberal democratic legal systems, in which an equal and respectful treatment of each human being as a free and responsible legal subject is a central value. We argue that results of empirical-legal research should not too easily or too quickly be translated into proposals for legal reform, but first become part of a hermeneutical discussion about norms and legal principles, specific to the normative character of law and legal science.