Experimental Jurisprudence Research Articles

Apply the Laws, if They are Good: Moral Evaluations Linearly Predict Whether Judges Should Enforce the Law.

What should judges do when faced with immoral laws? Should they apply them without exception, since "the law is the law?" Or can exceptions be made for grossly immoral laws, such as historically, Nazi law? Surveying laypeople (N = 167) and people with some legal training (N = 141) on these matters, we find a surprisingly strong, monotonic relationship between people's subjective moral evaluation of laws and their judgments that these laws should be applied in concrete cases. This tendency is most pronounced among individuals who endorse natural law (i.e., the legal-philosophical view that immoral laws are not valid laws at all), and is attenuated when disagreement about the moral status of a law is considered reasonable. The relationship is equally strong for laypeople and for those with legal training. We situate our findings within the broader context of morality's influence on legal reasoning that experimental jurisprudence has uncovered in recent years, and consider normative implications.

No evidence that reversibility affects causal judgments in late-preemption cases

ABSTRACT Recently, Ross and Woodward (2022) argued that the reversibility of an outcome – that is, whether the outcome can be undone – affects causal judgments. One prediction of their account is that reversibility affects causal judgments in late-preemption scenarios, where people typically judge that events that produce the outcome earlier are more causal than preempted alternative events that would have otherwise produced the outcome. Ross and Woodward’s account predicts that when the outcome is reversible, people would judge these events similarly – as in standard overdetermination cases. In three experiments, we found no evidence that reversibility affects causal judgments in late-preemption cases. We discuss how these results affect the experimental philosophy and cognitive science of causation, causal modeling, and experimental jurisprudence.

When legal interpretation is not about language

Abstract Linguistic arguments are paramount in legal interpretation. They are widely used by judges and considered to be ubiquitous across jurisdictions. It is claimed that they are decisive and limitative in the judicial interpretation of the law. The claims have long been subject to theoretical scrutiny and, recently, testing within experimental jurisprudence. In this paper, we analyse the judicial reasoning in a landmark Italian case from the end of the nineteenth century concerning Lidia Poët, an aspiring practising female lawyer. The case was decided in the last instance by the Turin Court of Cassation. We give a detailed argumentative analysis of the reasoning of the Court of Cassation in Turin in the Lidia Poët case and show that the crucial linguistic and systematic arguments used are not grounds for the interpretative decision to exclude women from the denotation of the word “lawyer.” We conclude that the linguistic arguments employed by courts often do not do the argumentative work they are expected to do. Instead, they cover the substantial views that have determined the ascription of normative meaning to a term or sentence.

The burning armchair: can jurisprudence be advanced by experiment?

ABSTRACT Is the field of general jurisprudence catching up – or is it simply getting distracted? Whereas legal philosophy has always featured claims about the content of the folk concept of law, it is only in the last few years that it has begun to self-consciously test those claims. Kenneth Himma’s recent review of this effort in Jurisprudence is a milestone: it reveals X-Jur as having progressed to the point of attracting broader philosophical attention, and it challenges X-Jur’s practitioners to persuade those not already convinced of the potential of alternatives to the analytic method. I take Himma’s critique as an opportunity to sketch some preliminaries for a theory of experimental jurisprudence, considering, in turn, the nature of jurisprudential truth, the role of expertise, and how empirical data might best be interpreted to help adjudicate claims about the content of the folk concept. I conclude with a brief discussion of the field’s future.

Replacement naturalism and the limits of experimental jurisprudence

Replacement naturalism and the limits of experimental jurisprudence

Replacement naturalism and the limits of experimental jurisprudence

ABSTRACT This essay is concerned with Brian Leiter’s so-called replacement naturalism, according to which the traditional methodology of conceptual jurisprudence ‘should be replaced by reliance on the best social scientific explanations of legal phenomena.’ I argue that, although the methodology of experimental jurisprudence is the only plausible replacement for the traditional methodology, it cannot can replace the philosophical methods traditionally used to address conceptual issues and, further, that experimental jurisprudence needs a theoretical foundation that properly locates its role relative to that of conceptual theorising and clarifies its methodology. To this end, I discuss three recent studies that attempt to ascertain the intuitions of competent speakers on three longstanding conceptual disputes about law: two attempt to show our folk concept of law is antipositivist, whereas the other attempts to show our folk concept of law is consistent with the existence of sanction-less legal systems. I argue that all three studies suffer from defects indicating the empirical methodology of experimental jurisprudence can supplement, but cannot replace, the traditional philosophical methodology for addressing conceptual questions. I argue, finally and far more worrisomely, that the last study calls into question its usefulness even in supplementing the traditional philosophical methodology.

Alice in Wonderland: experimental jurisprudence on the internal point of view

ABSTRACT Humans have this extraordinary cognitive ability: They imagine inexistent objects, they treat them as if they were real, and by doing so they make them real. They thus give rise to a shared institutional reality that enables them to cooperate in ways that would be impossible otherwise. In this paper, we would like to revisit the account that HLA Hart gives of the practice of collective acceptance that makes a legal system possible. We try to provide an explanation of what Hart calls the ‘internal point of view’, on the basis of experiments on institutional concepts, drawing on the paradigm known as ‘embodied cognition’. Experts and non-experts in law rated the role of several cognitive dimensions for a list of words referring to two kinds of abstract concepts (institutional and theoretical/scientific) and two kinds of concrete ones (food and artifact). Institutional concepts were distinguished into pure-institutional (e.g., ‘contract’, ‘state’, ‘property’) and meta-institutional (e.g., ‘norm’, ‘duty’, ‘justice’). The results provide an empirical account of how our way of thinking about institutions changes as we acquire expertise in the legal field, thus shading light on the cognitive underpinnings of the ‘internal point of view’.

Competing Conceptual Inferences and the Limits of Experimental Jurisprudence

Competing Conceptual Inferences and the Limits of Experimental Jurisprudence

Purposes in Law and in Life: An Experimental Investigation of Purpose Attribution

AbstractThere has been considerable debate in legal philosophy about how to attribute purposes to rules. Separately, within cognitive science, there has been a growing body of research concerned with questions about how people ordinarily attribute purposes. Here, we argue that these two separate fields might be connected by experimental jurisprudence. Across four studies, we find evidence for the claim that people use the same criteria to attribute purposes to physical objects and to rules. In both cases, purpose attributions appear to be governed not so much by original intention or by moral value as by current practice. We argue that these findings in the cognitive science of purpose attribution have implications for jurisprudential questions involving purposivist legal interpretation.

Experimental Jurisprudence of Health and Disability Law

Experimental Jurisprudence of Health and Disability Law

Some Doubts about Folk Jurisprudence: The Case of Proximate Cause

This Essay offers a critique of “folk jurisprudence.” Folk jurisprudence is the focus on folk understandings as a means to determine the content of the concept of law and of legal concepts. Folk jurisprudence is characteristic of some (though not all) forms of both “armchair” analytic philosophy and experimental jurisprudence. Folk jurisprudence gets many things right. For instance, it captures the fact that law and legal concepts are social kinds that are sensitive to the ways in which agents conceptualize them. However, folk jurisprudence gets one big thing wrong: the understandings that matter are not those of the population at large. The legal system is a governance structure characterized by an artificial, highly technical, and relatively arcane form of practical reasoning. Law is not a practice of the folk; it is a practice of an elite of experts in law—legal officials. The concept of law is not the people’s concept of law. It is the concept of law of the legal officials who populate the governance structure we call “law” and make that governance structure an institutional reality. The same is true for legal concepts. Their meaning depends on their use by law’s personnel. This explains why legal institutions are exposed to the risk of legal alienation. It also explains why folk concepts are not determinative of the concept of law or legal concepts, and why attempts—like Knobe and Shapiro’s—to determine the content of legal concepts by appealing to folk understandings is misguided and inevitably collapse into traditional forms of legal argument. We might want law to be responsive to citizens’ views. We might also want to reduce legal alienation. Still, we should not confuse what we would want to be the case with what in fact is the case.

Purposes in law and in life: An experimental investigation of purpose attribution

There has been considerable debate in legal philosophy about how to attribute purposes to rules. Separately, within cognitive science, there has been a growing body of research concerned with questions about how people ordinarily attribute purposes. Here, we argue that these two separate fields might be connected by experimental jurisprudence. Across four studies, we find evidence for the claim that people use the same criteria to attribute purposes to physical objects and to rules. In both cases, purpose attributions appear to be governed not so much by original intention or by moral value as by current practice. We argue that these findings in the cognitive science of purpose attribution have implications for jurisprudential questions involving purposivist legal interpretation.

Proximate Cause Explained: An Essay in Experimental Jurisprudence

Among the oldest debates in American jurisprudence concerns the concept of “proximate cause.” According to so-called formalists, the legal concept of “proximate cause” is the same as the ordinary concept of “cause.” The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and Robert Keeton put it, “Proximate cause is better called ‘responsible cause’.” Recent work in cognitive science has afforded us new insights into the way people make causal judgments that were unavailable at the time of the original debate between formalists and realists. We now have access to the results of systematic experimental studies that examine the way people ordinarily think about causation and morality. This work opens up the possibility of a very different approach to understanding the role of causation in the law — one which combines the attractive features of both formalism and realism without accepting their implausible consequences. In addition to providing a model for interpreting the case law of proximate cause, this paper also exemplifies a new way of doing legal theory — a method we call “experimental jurisprudence.” Experimental jurisprudence is the study of jurisprudential questions using empirical methods. Jurisprudential disputes about proximate cause are especially ripe for empirical analysis because the debate revolves around whether the legal concept of proximate cause is the same as the ordinary concept of causation. Interrogating the ordinary concept of causation, therefore, should shed light on this question.

CRITICAL NOTICES

CRITICAL NOTICES Get access SOME POTENTIALITIES OF EXPERIMENTAL JURISPRUDENCE AS A NEW BRANCH OF SOCIAL SCIENCE. By FREDERICK K. BEUTEL. [ University of Nebraska Press, Lincoln. 1957. xv and 440 pp. $6.] H. M. H. M. Search for other works by this author on: Oxford Academic Google Scholar The British Journal of Criminology, Volume 2, Issue 1, July 1961, Pages 85–87, https://doi.org/10.1093/oxfordjournals.bjc.a047888 Published: 01 July 1961

Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science

Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science

Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science

Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science

Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science

Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science

Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science. By Frederick K. Beutel. (Lincoln: University of Nebraska Press. 1957. Pp. xvi, 440. $6.00.)

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Some Potentialities of Experimental Jurisprudence

Some Potentialities of Experimental Jurisprudence

Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science.Frederick K. Beutel

<i>Some Potentialities of Experimental Jurisprudence as a New Branch of Social Science.</i>Frederick K. Beutel