To produce knowledge, scholars employ procedures or methods. This is true of any field, including legal philosophy. To investigate the nature of good government, Aristotle began by collecting a sample of constitutions of 158 Greek city-states.
To elucidate causation in ordinary life and law, H.L.A. Hart and Tony Honoré marshaled dozens of intuitive, ordinary examples and common law case studies.
Ronald Dworkin tested (and rejected) the theory that law depends only on matters of plain historical fact by providing “sample cases” that seem to be “counterexamples” to that view.
In a philosophical defense of racial integration as an imperative of justice, Elizabeth Anderson analyzed empirical studies of racial segregation and inequality in the United States, both to test ideal theories of justice and to help generate new conceptions of justice.
Systematically generating knowledge as part of a discipline requires cultivating robust and rigorous methodologies. If questions are the seeds of a successful discipline, methods are its sustenance. Legal philosophy can grow by asking new questions—and much of modern legal philosophy’s excitement stems from its diversifying questions.
But disciplines also flourish with methodological clarification and innovation. This Review explores that methodological possibility for legal philosophy.
This Review begins with Professor Julie Dickson’s Elucidating Law, a careful, thoughtful, and exciting contribution to legal philosophy.
Following the book,
this Review uses “legal philosophy,” “philosophy of law,” and “jurisprudence” interchangeably. Elucidating Law considers fundamental questions, including: What are legal philosophy’s goals, and with what methods should legal philosophers address the discipline’s questions?
More broadly, the book sketches a modern vision of legal philosophy and its future. Philosophy of law is not dead, and Dickson helpfully clarifies the work that remains and how to do it.
The Review’s Part I summarizes some of Elucidating Law’s central ideas. Part II highlights the book’s emphasis on how a legal system’s participants understand law and the relationship between that understanding and legal-philosophical methodology. Part III takes inspiration from the book’s call for innovation in legal philosophy. The Review argues that new empirical methods, especially psychological studies of ordinary people’s understanding of law, provide unique insights that inform central jurisprudential questions. Legal philosophy has a long tradition of asserting claims about how “we” understand the law.
Today, there are rich literatures of empirical work about these understandings across many areas of law and new methods for investigating untested claims. Some of this work flies under the banner of “experimental jurisprudence”;
this and similar empirical approaches provide rich insight into the understandings of legal participants.
Part III also proposes that the experimental jurisprudence model is consistent with Dickson’s proposed “two-stage” model of legal-philosophical inquiry. It concludes by considering two objections to the proposal to methodologically innovate jurisprudence with empirical methods: Legal philosophy is concerned with (only) expert understandings of law,
and legal philosophy is concerned with the nature, not concept, of law.
Of course, empirical methods are not a panacea and they should not “replace” traditional jurisprudence.
Nor should jurisprudence abandon its longstanding consideration of how “we” understand our law. Instead, jurisprudence should continue the project of methodological clarification and also welcome a project of methodological innovation: Jurisprudence could elucidate these understandings of law more fully with new data and methods. Today’s jurisprudence would achieve greater rigor by complementing traditional methods with new empirical data and methods.