Empirical Legal Research: The Gap between Facts and Values and Legal Academic Training

Abstract

While traditional legal scholarship is under pressure and debates are taking place on the aims and methods of the academic study of law, at the same time empirical legal research is blossoming if not booming. The more empirical legal research is a growth industry, the more important it is to understand and discuss epistemological, methodological and translational problems of this field of study. This paper focuses on problems of a translational character, i.e. how to bring empirical evidence to the fore, in such a way that it can be understood and used by lawyers, legislators and regulators. And how to deal with the gap between facts (‘evidence’) and values, also known as the fact-value dichotomy. Our perspective is what students of law, including PhD candidates and legal practitioners (in training), need to know about this problem and how to address it. The paper summarizes several approaches to this gap problem, based on Giesen (2015) and continues with a critical analysis of his due process approach. Our analysis is that the gap problem continues to exist despite Giesen’s suggestions. Therefore four other approaches are put forward, two from the field of evaluation studies, one from argumentational analysis and one from empirically informed ethics. Finally, the paper discusses the relevance of these approaches for the legal curriculum.