Vol. 123 No. 8
Book Review
METHODOLOGY AND INNOVATION IN JURISPRUDENCE

METHODOLOGY AND INNOVATION IN JURISPRUDENCE

Elucidating Law
By Julie Dickson. Oxford, UK: Oxford University Press, 2022.
Pp. 208. $110.00.

Kevin Tobia*

Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which in turn elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology.

Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask some timeless questions, but its methods need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how “we” understand the law—in which “we” might refer to all people, citizens of a jurisdiction, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from “experimental jurisprudence” and related disciplines can assess untested assertions. Today’s jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones.

The full text of this Book Review can be found by clicking the PDF link to the left.

* Associate Professor of Law, Georgetown University Law Center. Thanks to St. Catherine’s College, University of Oxford, for supporting me as a Visiting Fellow. For helpful comments, thanks to Guilherme Almeida and Felipe Jiménez. Thanks to the Columbia Law Review, and especially Ramzie Aly Fathy, for excellent editorial assistance.

Introduction

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. 1 See Raphael Sealey, A History of the Greek City States, 700–338 B.C., at 4 (1976). 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. 2 See H.L.A. Hart & Tony Honoré, Causation in the Law 130–430 (1985). Some have criticized Hart and Honoré’s intuitive methodology. See, e.g., Jane Stapleton, Law, Causation and Common Sense, 8 Oxford J. Legal Stud. 111, 124 (1988) (reviewing Hart & Honoré, supra) (“Bald assertions of what the ordinary person recognizes as causal connection are also objectionable in theory. [Hart & Honoré] do not provide a discussion of the work of social psychologists who have attempted to examine empirically the attribution of causal connection by ordinary people.”). 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. 3 Ronald Dworkin, Law’s Empire 31 (1986). 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. 4 Elizabeth Anderson, The Imperative of Integration 6–7, 21 (2010) (“In nonideal theory, ideals embody imagined solutions to identified problems in a society. They function as hypotheses, to be tested in experience. . . . Reflection on our experience can give rise to new conceptions of successful conduct.”).

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. 5 See infra notes 26–34 and accompanying text. But disciplines also flourish with methodological clarification and innovation. This Review explores that methodological possibility for legal philosophy. 6 To be clear, jurisprudence’s methodology has not been neglected. See Julie Dickson, Methodology in Jurisprudence: A Critical Survey, 10 Legal Theory 117, 118 (2004) (discussing modern scholarship concerning the varied methodologies in jurisprudence); Michael Giudice, Wil Waluchow & Maksymilian Del Mar, Introduction to 1 The Methodology of Legal Theory, at xi, xi–xxv (Michael Giudice, Wil Waluchow & Maksymilian Del Mar eds., Routledge 2016) (2010) (surveying varied methodologies in jurisprudence); Alex Langlinais & Brian Leiter, The Methodology of Legal Philosophy, in The Oxford Handbook of Philosophical Methodology 671, 671–88 (Herman Cappelen, Tamar Szabó Gendler & John Hawthorne eds., 2016) (discussing varied methodologies in jurisprudence); Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 Am. J. Juris. 17, 19 (2003) (“[L]egal philosophers have now given renewed attention to the methodological issues: for it is here that a new vulnerability of legal positivism has been identified.”). Yet much of the current discussion focuses on the methodological commitments of recent influential figures, see, e.g., Andrew Halpin, The Methodology of Jurisprudence: Thirty Years Off the Point, 19 Canadian J.L. & Juris. 67, 68 (2006) (critiquing the methodologies of legal theory via an analysis of “Dworkin’s anti-positivism”); Stephen R. Perry, Hart’s Methodological Positivism, 4 Legal Theory 427, 427 (1998) (analyzing Hart’s theory of methodological legal positivism), or takes a critical stance, pointing to flaws or deficiencies in method, see, e.g., Langlinais & Leiter, supra, at 677 (exploring critiques of Hart’s “methodology of conceptual analysis”); Leiter, supra, at 19 (investigating “methodological issues” that reveal a “new vulnerability of legal positivism”).

This Review begins with Professor Julie Dickson’s Elucidating Law, a careful, thoughtful, and exciting contribution to legal philosophy. 7 Julie Dickson, Elucidating Law (2022) [hereinafter Dickson, Elucidating Law]. Following the book, 8 See id. at 1 n.1. 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? 9 See id. at 1. 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. 10 See infra Part II. 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”; 11 See, e.g., Roseanna Sommers, Experimental Jurisprudence: Psychologists Probe Lay Understandings of Legal Constructs, 373 Science 394, 394 (2021) (noting scholarship that applies psychology research to legal concepts including “causation, consent, [and] reasonableness”); Kevin Tobia, Experimental Jurisprudence, 89 U. Chi. L. Rev. 735, 736 (2022) [hereinafter Tobia, Experimental Jurisprudence] (“Experimental jurisprudence is scholarship that addresses jurisprudential questions with empirical data . . . . This Article introduces experimental jurisprudence . . . and proposes a framework to understand its contributions.”); Karolina Magdalena Prochownik, The Experimental Philosophy of Law: New Ways, Old Questions, and How Not to Get Lost, Phil. Compass, art. e12791, Dec. 2021, at 1, 1–2 (discussing “three main lines of research within” 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, 12 See infra section III.C. and legal philosophy is concerned with the nature, not concept, of law. 13 See infra section III.D.

Of course, empirical methods are not a panacea and they should not “replace” traditional jurisprudence. 14 See, e.g., Kenneth Einar Himma, Replacement Naturalism and the Limits of Experimental Jurisprudence, 14 Jurisprudence 348, 350 (2023) (“[E]xperimental jurisprudence can supplement, but not replace, the traditional philosophical methodology for addressing conceptual questions.”). To my knowledge, no advocate of experimental jurisprudence has proposed that it could or should replace (in total) traditional legal philosophy. 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. 15 John Burgess and Silvia De Toffoli’s understanding of “philosophical rigor” is instructive:
Rigor can be seen as an intellectual virtue beyond mathematics. A philosophical argument, for example, is rigorous when it is scrupulous. Outside mathematics, rigor is, however, a much vaguer concept. A rigorous argument can be shared among relevant experts. It is the kind of thing on which a reasonable subject with the appropriate background training would base a justified belief.
John P. Burgess & Silvia De Toffoli, What Is Mathematical Rigor?, 25 APhEx (2022), https://www.openstarts.units.it/server/api/core/bitstreams/8d6603ae-c93c-4e14-8752-c091f15b6348/content [https://perma.cc/4VRT-AKCU] (It.).