Monday, July 14, 2014
Is law An Applied Field?
Two weeks ago I have participated in a conference on individual differences in law beautifully organized by Avishalom Tor. The conference brought together many leading psychologists, economists and legal scholars to discuss the ability of the law to recognize individual differences. Whether the law is able to treat people differently is indeed a highly complex issue and during the two days of the conference, many related questions were raised and discussed. The focus of this post is related to an observation I had on the discourse between legal scholars and non-legal scholars at the conference. For the most part, the ability of the law to adopt individual differences was analyzed based on issues such as enforcement costs or the effect of differential regulation on behavior. This approach is not without a basis. Many of the academic papers in law reviews have a “mandatory” legal implications section. This is even truer, when it comes to empirical legal studies papers.
The discussion of whether law is a practical or a theoretical field, is of course quite old within the legal scholarship. However, the new point I wish to draw attention to here, is regarding the contribution of empirical legal studies to the perception of it as a policy oriented field. If this observation is accurate, it is quite paradoxical given the fact that empirical legal studies, could have been perceived as a way to merge legal scholarship better into other social sciences such as psychology or sociology, due to its shared methodology. However, instead when law is trying to have its own empirical perspective, it is being pushed to focus on improving legal policy rather than to contribute to the richness of the theoretical discourse in law, even if this could not translate to legal policy making.
This dilemma carries some relevancy for some interesting questions. For example, to what extent, should the research conducted in ELS, be externally valid (see my last post). In that regard, is there a justification for lab experimentation, which could not be translated immediately to policy making? Is there a point in doing empirical legal research, when variation in context is highly predictive?
Going back to the individual difference approach that triggered this discussion, we need to understand whether the law should adapt itself to the research on individual differences, only based on how complicated, it will be to change its enforcement practices or whether it should also consider theoretical justifications when accounting the fact that people are indeed different.