The relationship between legal and scientific 'truth' continues to be a topic of academic interest, doctrinal concern and policy challenge. In the last decades, empirical research on human behaviour has become more and more relevant in public policy debates. Interdisciplinary approaches such as empirical legal studies and behavioural law and economics have an increasing impact both on legal research and the discourse on legal reforms. Still, actual legal rules and doctrines seem to resist an easy import of these empirical insights. Is there indeed such a resistance? What are the reasons for it? To what extent is the law's model of the world based on empirical knowledge, on common sense or on something else? Is there a fundamental discrepancy between what we know from science and "how the law thinks"? Should there be? While science is clearly and increasingly relevant for the operation of law, there are many open questions about empirical knowledge and legal cognition that go to the heart of our theoretical understanding of law.
The aim of this interdisciplinary workshop Empirical knowledge, common sense, and legal cognition has been to take discussion on these matters further, especially by helping clarify what is being or needs to be contrasted when talking about law and science. They also suggest that the possible disconnect is actually threefold, involving science, law and common sense. Based on pre-circulated papers, the two days of the workshop allowed for an intensive discussion among 20 participants from 8 countries and 4 disciplines. The contributions could be roughly categorised into three groups.
The first approach offers theoretical and empirical evidence to reveal to policymakers and legal scholars what "law" as a social practice does not and cannot itself understand about its own assumptions and processes. Case studies in this regard concerned the impact of neurological and behavioural studies of impulsivity on educational policies and individual liability; the reasons for and possible legal responses to seemingly irrational bias of legal fact finders for direct as opposed to indirect evidence; and psychological evidence on the impact of visual and textual information on categorisation tasks in legal decision making.
The second group of papers looked at the various institutional and doctrinal mechanisms for incorporating scientific knowledge into the operations of current legal systems. Some of this incorporation takes place in traditional ways such as ministerial drafting committees or judicial reinterpretation of doctrines, some through practices and techniques such as goal legislation and experimental legislation which have become formalised and widespread more recently. If there are specific reasons for the resistance of law to empirical knowledge, they seem to be related to doctrinal structures, institutional features and normative foundations of modern legal systems.
Papers of the third kind addressed these latter questions directly and discussed the specificity and relative autonomy of law and legal scholarship. Topics included the ontology of legal concepts as abstract objects; the contrast between law and Foucauldian governance; the law?s attachment to common sense ideas as opposed to a naturalised view of human behaviour; and the reductionism of empirical approaches to justice.
The discussions have also made clear that all interactions between law and empirical research, piecemeal or large-scale, legislative, administrative or judicial, old and new, raise not only practical questions of manageability but political and moral questions about the justifiability of such incorporation. Apart from practical and epistemic reasons, there seem to be moral reasons as well for maintaining the law?s autonomy. These are related to a certain ideal of law as normative guidance where law gives reasons to its addressees and they should be able to disobey the law. When regulation/governance/management of people restricts their action space or manipulates them in such a way that they are forced or tricked into following what the regulator wanted, this runs counter this ideal of the law. There is, to be sure, still room not only for moral discourse about this but also for empirical research. One could argue that these alleged moral reasons are in fact stemming from moral intuitions which themselves may change, e.g. through more experience in new technological devices of governance or in light of new empirical discoveries about the human mind.
Sacha Bourgeois-Gironde (Paris, FRA), Mátyás Bódig (Aberdeen, GBR), Eric van Damme (Tilburg, NED), Mariusz Jerzy Golecki (Lodz, POL), Rafael Häcki (Bern, SUI), Hanjo Hamann (Bonn, GER), Anne Ruth Mackor (Groningen, NED), Dirk van der Meulen (Groningen, NED), Sofia Ranchordas (Tilburg, NED), Marcin Romanowicz (Warschau, POL), Stefan Schlegel (Bern, SUI), Bas Schotel (Amsterdam, NED), Doron Teichman (Jerusalem, ISR), Stefan Trautmann (Tilburg, NED), Paul Troop (Oxford, GBR), Pauline Westerman (Groningen, NED), Wojciech Zaluski (Krakau, POL)