Evidence-Based Jurisprudence: An Essay for Oxford

Abstract

This essay is part of a broader attempt to put some flesh on the bones of natu- ralistic jurisprudence. My general aim in this essay is to show that much contem- porary jurisprudence takes a very narrow understanding of its subject matter, and gives priority, to the point of exclusivity, to one methodological approach – analytic philosophy – over all others. Unlike naturalistic analytic philosophy that welcomes ideas and data from other disciplines, the approach that dominates jurisprudence sees legal philosophy as concerned with certain questions that are uniquely philo- sophical and to which other disciplines have little to contribute. Some have chal- lenged my past characterization of analytic jurisprudence as “isolationist.” My first aim in this essay is to show that this narrow approach is real. I begin by providing some empirical evidence on the narrowness of work in analytic jurisprudence (with special reference to work coming from Oxford). After showing that, I present some ways in which a naturalistic alternative would build on ideas or data coming from disciplines other than philosophy. In addition, I argue for two additional ways in which naturalistic jurisprudence differs from the current dominant approach. First, I suggest it should take the study of legal practice as central to its endeavor; and sec- ond, I suggest that legal philosophers themselves may be a relevant subject of study.