Julien Bétaille¹

Empirical legal research has longstanding roots in the United States, originating in the early 20th century as a consequence of legal realism (Heise 2002; Kritzer 2010; Eisenberg 2011). Although there has been a lack of comprehensive historical evaluation, it is plausible to consider that the development of empirical legal research in Europe is a more recent phenomenon.² With this form of research gaining traction, it is an opportune moment to assess its current state and to contemplate the potential for an empirical shift in European legal scholarship. This special issue aims to address these considerations.

After defining and characterising empirical legal research (1), it is necessary to situate it in the specific context of the European continent (2). Indeed, European legal scholarship is marked by a millenary doctrinal tradition (3) that the emergence of empirical legal research necessarily calls into question. Empirical legal research challenges traditional divisions and finds its own space at the intersection of legal and social sciences (4). To put it simply, it retains the subject matter of the former while applying the methods of the latter. The fact remains that while empirical legal research seems to have the wind in its sails at European level (5), this situation is probably not homogeneous, as the example of France shows (6). But beyond these general considerations, there are several reasons for studying the integration of empirical legal research in European legal scholarship (7). The content of this special issue is intended to provide some insights on this subject (8).

1 Empirical Legal Research

Empirical legal research can be broadly defined as the systematic collection and analysis of data pertaining to legal phenomena. This data encompasses legal information or information regarding the law, and more broadly, its operation within society. The data is gathered systematically, sometimes exhaustively, and is subsequently analysed to address a research question, thereby generating knowledge about the law and its actual functionality. This definition can be refined, particularly around the concepts of data-driven knowledge that is verifiable through observation or experiment (Bernard 1865), reproducible, and even falsifiable in the Popperian sense (Popper 1959).

Empirical legal research represents one component within the broader constellation of the relationship between law and social sciences, assuming it can be limited to the “social” sciences alone. While this does not necessarily render it unique, a fundamental characteristic of empirical legal research is its systematic approach, which stands in contrast to the selective nature of the doctrinal tradition. The latter, as heirs to the glossators of the Middle Ages, is accustomed to commenting on specific norms or court decisions.

Empirical legal research also provides an external perspective on the law, in contrast to the internal focus of doctrinal approaches. The external perspective “allows a critical distancing from the legal order in force, which is the condition for a scientific approach” (Chevallier, 2002, 112). More specifically, when conducted by legal scholars, empirical legal research likely constitutes what François Ost and Michel van de Kerchove have called a “moderated external viewpoint” (Ost and van de Kerchove 1987, 187), which integrates both an objectifying external perspective and the internal viewpoint of legal practitioners (Brunet and van de Kerchove 2010, 269–271). This is particularly significant because, on one hand, purely internal approaches conflate the discourse “of law” with the discourse “on law”, and, on the other hand, a radically external approach may risk underestimating the unique characteristics of the law.

2 European Context

Empirical legal research in the United States has had a “more influential history” than in Europe (Holtermann 2019, 8). While North American legal scholarship experienced an empirical turn in the mid-2000s³ and has since developed into a robust field of research (Ganne 2021), the advancement of these approaches in Europe appears to be significantly more fragmented and inconsistent, varying widely by country and legal discipline.

Europe, however, presents an appropriate scale for examining the development of empirical legal research and the potential existence of an empirical turn. Firstly, it can be assumed that empirical legal research is probably less developed and less recognised in Europe than in the United States. Secondly, Europe has a long-standing tradition of unity in its legal scholarship, characterised by a “common history of European Legal Scholarship” (Wallinga 2011, 3). This alone justifies this special issue: “Europe is not a small place, its legal scholarship has a long history, and for many parts of Europe it is a common history” (Wallinga 2011, 3). This unity dates back ten centuries to the establishment of the first universities in the 11th century. During the Middle Ages, “the unifying bonds of the Latin language and of Roman law, which remained in force as a subsidiary source of law, ensured that legal writings were read all over Europe, the syllabi of the law faculties were more or less identical, and the cross-border mobility of both students and teachers of law was high” (Vogenauer 2012). Such unity was only disrupted by the creation of national codifications from the 18th century, which “caused lawyers to focus mainly on their own national law” (Wallinga 2011, 3) and “marked the end of a common European legal scholarship” (Vogenauer 2012). However, this national retreat, although still a reality, has been diminishing since the onset of European integration, owing to both the harmonisation of national laws it has facilitated and the Europeanisation of research and teaching.⁴ Therefore, the European context remains pertinent for studying the evolution of legal scholarship. It is all the more interesting in that empirical legal research is developing alongside a very old doctrinal tradition.

3 A Millenary Doctrinal Tradition

European legal scholarship has a very long and well-established doctrinal tradition (Wallinga 2011; Vogenauer 2012). Since the 11th century, the aim of legal scholars has notably been the systematisation of law. With the glossators, scholars began the work of annotating, commenting on, and interpreting the principal texts. They invented a system of references that facilitated navigation through these texts. Even then, “they tried to interpret the texts in such a way that no contradiction […] remained” (Wallinga 2011, 5). This marked the beginning of a form of legal systematisation. Professors produced the first textbooks, summaries, etc. In particular, the summae “do not follow the order of the text […] but establish their own order and system” (Wallinga 2011, 6). Subsequently, the application of formal logic to law through the scholastic method did not divert scholars from the search for a coherent system; it remained a matter of harmonising sometimes contradictory texts (Wallinga 2011, 7). The method used in canon law also pursued this objective: it was about “reconciling apparently disagreeing texts so as to form one authoritative whole” (Wallinga 2011, 11). The notion that the role of legal scholars is to systematise the law was further reinforced by legal humanism (16th–18th century) and subsequently by the German historical school.

With codification, the work of legal scholars became an art of classification, categorisation, and ordering, without abandoning systematisation. Scholars thus adopt an internal point of view on the law. Systematisation is intended to influence the law almost as much as the law influences its systematisation. At that time and until the end of the 19th century, there was no other way to be a legal scholar. The doctrinal approach was unquestioned, although this did not prevent the development of critical approaches, either to the content of the law or to its methods.

The development of the social sciences, influenced by Auguste Comte's positivism, which adopt an external point of view on their object, did not significantly challenge the doctrinal approach. Indeed, to date, legal scholarship has essentially remained impervious to social science methods, despite numerous criticisms of legal formalism (Jouanjan and Zoller 2015) and the emergence of critical “free school” movements (Vogenauer 2012) in line with the birth of sociology at the turn of the 20th century. At that time, “traditional legal positivism is put in crisis and the contestation of its expectations as well as its consequences targets, in an almost unanimous way, the blindness of its methods and thus of its productions [...] in the face of social realities” (Jouanjan 2015, 13). This phenomenon “has affected the major Western legal orders in a remarkably synchronized way” (Jouanjan 2015, 13). It saw the birth of the London School of Economics in England, the sociological jurisprudence of Roscoe Pound in the United States, and the reform of law schools in Germany (Jouanjan 2015, 14). “The school of free research in France, the school of free law in Germany, the American or Scandinavian realists shared the same general project: root the legal science into – according to the authors – the reality of law or the reality of the social world” (Champeil-Desplats 2023).

However, this was not very fruitful and led to a split between legal scholarship and the social sciences. In France, for instance, political science has become independent of constitutional law, “administrative science” has emerged as a counterpoint to administrative law (Chevallier and Lochak 1978), and “legal sociology” has developed alongside civil law (Carbonnier 1972). Among others, Max Weber and Hans Kelsen have ensured a form of division of labour between the sociology of law and legal scholarship (Champeil-Desplats 2019). The latter has not undertaken any profound reform of its methods and has remained impervious to the empirical methods which, at the same time, have been widely adopted by the social sciences.

It is precisely this division of labour that empirical legal research is now implicitly challenging by employing social science methods to capture legal objects.

4 Challenging Traditional Divisions, Overcoming Controversies: Is Empirical Legal Research Really “Legal”?

Applying social sciences methods to legal objects, empirical legal research directly contradicts the Kelsenian dogma of the purity of the science of law (Kelsen 1960, 1) and goes beyond the ambitions of traditional legal realism.⁵ Whereas the latter sought to argue that law can be understood as an empirical fact (Gaye-Palettes 2023, 131), contemporary empirical legal research takes this for granted, does not even discuss it, and, in a sense, moves beyond this classic theoretical debate into action.⁶ Whatever the controversy between Ross and Hart (Gaye-Palettes 2023, 240), empirical legal research implicitly demonstrates, through its results, that the law can indeed be understood empirically.

Nevertheless, when empirical legal research studies legal phenomena, some critics might argue that it largely duplicates existing social sciences that take the law as their object. This is at least the case when those social sciences employ rigorous empirical methods. Therefore, empirical legal research would just be a new strand of the sociology of law. Without directly responding to this criticism, and assuming that the question is genuinely of interest, a few arguments can at least be considered. Empirical legal research focuses, in principle, on research questions that are specifically legal, or at least likely to be of primary interest to lawyers. In this sense, it complements the other social sciences. At the very least, it helps to fill a gap and produce new knowledge: legal knowledge produced by using empirical methods.

This is particularly the case when empirical legal research employs computational analysis. In this context, the research object is restricted to legal texts. Using large language models or graph theory (among others Livermore and Rockmore 2019; Vivo, Katz and Ruhl 2022; Whalen 2020; Sileno, Spanakis and van Dijck 2023; Dyevre 2021), for example, the aim is to study empirically legal norms and judicial decisions as such. Among other things, legal data analytics uses computers to explore large bodies of legal documents, identify common points and differences between them, search for information within these documents, and automate their annotation using artificial intelligence. Practically speaking, this increases our capacity to analyse legal documents tenfold (Katz and Bommarito 2016; Alschner 2023). Empirical legal research thus rediscovers an object—the law—which, although narrow, is the traditional object of “legal science”. The same applies to content analysis applied to a legal object (Bijleveld 2023, 176), whether automated or manual, such as systematic case law analysis (Wijntjens and Verbruggen 2024). The value of such knowledge—and its distinction from doctrinal knowledge—is that it is, at least in principle, reproducible, thereby bringing it closer to a scientific ideal.

But of course, this does not mean that empirical legal research addresses the same questions as doctrinal approaches to the law. For instance, empirical research lacks a hermeneutical function; it does not involve interpreting or identifying the meanings of normative statements. This task falls within the domain of doctrinal or analytical approaches. Nonetheless, empirical research can be complementary while remaining “legal”. It can, for example, provide insights into how normative statements are actually applied or understood by their intended audience, particularly through qualitative methods. This perspective offers a counterpoint to Hart's criticism of the inability of Scandinavian realism to capture the uses of law from an internal perspective (Hart 1961, 124). In any case, empirical legal research seems perfectly compatible with the idea that law has an open texture, and it may even make this an object of study.

In the end, the legal scholars most attached to the purity of their object can therefore be reassured. But is this enough to ensure the academic development of empirical legal research? Probably not, but fortunately academic freedom has enabled it to emerge throughout Europe.

5 Rise of European Empirical Legal Research

There are several indications that this field is in its infancy at the European level. While the United Kingdom was ahead of the game (Genn 2006), it was not until the mid-2010s that the first European conferences dedicated to empirical legal research appeared. In 2016, the first Conference on Empirical Legal Studies in Europe (CELSE) took place in Amsterdam (Engel 2018), with the second one following two years later in Leuven. Although these conferences could initially be seen as a projection of American empirical legal studies into Europe, it was not long before a distinctly European movement began to emerge. Some have argued for a European New Legal Realism (Holtermann and Madsen 2015, 211; Holtermann 2016, 3; 2021, 67), while others quickly established a Network of Legal Empirical Scholars (Šadl 2019, 1). The network held its first workshop in Sweden in 2017, and today, Urska Šadl and Johan Lindholm, two members of the network, are among the founding members⁷ of the newly established European Society for Empirical Legal Studies (ESELS).⁸ This Society created the European Journal for Empirical Legal Studies (EJELS), which published its inaugural issue in spring 2024 (Lindholm et al. 2024, 1).

However, even though Dyevre, Wijtvliet and Lampach (2019, 348) consider that the movement in favour of empirical jurisprudence is “especially promising”, and the use of empirical methods has developed rapidly, particularly in the Netherlands (Pannebakker et al. 2022), Belgium, and Northern Europe, this movement does not appear to be homogeneous across Europe.

6 Countries Lagging Behind: The French Example

Some countries clearly seem to be lagging behind in the development of empirical legal research, for example, France. In this country, empirical research about the law exists, but it is not conducted in law faculties. It is well known that “French law faculties continue to be strongly shaped by a traditional disciplinary orthodoxy rooted in a highly and distinctively structured form of doctrinal analysis” (Colson and Field 2016, 285).

Nevertheless, a singular form of sociology has developed in law faculties, known as “legal sociology”, which can be roughly defined as the sociology conducted by law professors. The two leading figures in the 20th century were Henri Lévy-Bruhl and Jean Carbonnier—academics trained in doctrinal analysis rather than social science methods. This openness of law professors to sociological approaches has its roots in the early 20th century. For example, the two most famous public law professors at that time, Léon Duguit and Maurice Hauriou tried to apply a sociological approach to public law. However, both were “at best cabinet sociologists who do not consider empirical work” (Jouanjan 2015, 16). After World War II, the legal sociology developed by Jean Carbonnier had an empirical tone but “was not an attempt to construct a pure science; his aims were instrumental, indeed utilitarian” (Colson and Field 2016, 302). Around the 1980s, a “critique du droit” movement emerged but this was only an interlude (Colson and Field 2016, 304). Today, legal sociology remains a very marginal discipline in French law faculties’ curricula.

However, there exists a sociology outside law schools that takes law as its object (Israël 2013, 262). Indeed, French sociology engages in a discourse on law—see Pierre Bourdieu's famous article on “The Force of Law” (Bourdieu 1987, 814)—and has conducted some significant empirical work, such as Bruno Latour’s ethnography of the Conseil d’État (Latour 2009). Nevertheless, this type of work is rare and reflects “the traditional French sociological orientation towards abstract theory” (Colson and Field 2016, 311; Serverin 2000). The most important journal in this field, Droit et Société, does not specifically claim an empirical agenda.⁹ In particular, French sociology produces little quantitative work about the law,¹⁰ and has been described as “a set of empirical but non-empiricist approaches” (Gaye-Palettes 2023, 36).

One might add that the Law & Economics movement has had difficulty developing in France, at least in law faculties,¹¹ and that criminology still faces significant challenges in developing institutionally as an independent discipline distinct from criminal law. In the end, empirical analysis of law is conducted outside law faculties in France (Colson and Field 2016, 306). It is spread across the different social sciences: partly in faculties of economics,¹² political science, research institutes such as the CNRS, or by criminologists or sociologists. It also appears to be quantitatively quite small, unless one includes all econometric studies, medical studies, or environmental sciences studies that incorporate legal variables.

The rare empirical works of legal scholars do not generally find their place in legal journals, which remain primarily the domain of doctrinal production for legal professionals.¹³ These empirical studies are typically produced in the context of funded research projects.¹⁴ Reversing this trend and developing empirical legal research within and beyond law faculties is therefore an important challenge. In law faculties, legal scholars seem to pose very few questions about the methods they employ. The degree of reflexivity is quite low. Olivier Jouanjan’s observation that “a considerable amount of legal discourse is produced without consideration of method or epistemological concern” remains valid (Jouanjan 2003). Dyevre, Wijtvliet and Lampach’s (2019, 348) observation is equally valid for French law faculties: “we must admit that doctoral dissertations in law rarely exhibit the level of methodological rigor and know-how commonly associated with the scientific method and, in many disciplines, with PhD training”.

Therefore, in view of the above, there is significant room for improvement and potentially a place for empirical legal research. In fact, there are some signs of movement, particularly since 2022.¹⁵ A new journal, Jurimétrie – Revue de la mesure des phénomènes juridiques, published its first issue,¹⁶ and at the end of the year, several French legal scholars met in Brussels for a francophone conference on “The use of empirical data in legal research”.¹⁷ In the meantime,¹⁸ several doctoral theses adopting an empirical approach have been defended (e.g. Billant 2022; Bordère 2023; Perroud 2024), and a research project aimed at developing the use of empirical methods in environmental legal scholarship has been funded by the Institut universitaire de France (Bétaille 2022; 2023). Additionally, a summer school dedicated to empirical methods was organised in Toulouse in June 2023,¹⁹ as well as the international symposium that gave rise to this special issue.²⁰ Since then, a doctoral thesis in legal theory has been defended on empiricism and law (Gaye-Palettes 2023), and Arthur Dyevre has published a monograph in French presenting the empirical literature on judicial decision-making (Dyevre 2024).

It is perhaps still a little too early to speak of a real turning point in France, where the doctrinal approach is powerful and has already shown its ability to push approaches perceived as competing to the periphery (Bordère 2023). However, these encouraging signs are to be welcomed, even if they are not as pronounced as at the European level.

7 The Integration of Empirical Legal Research in the European Legal Context

Broadly speaking, “it has become commonplace to claim that legal scholarship has seen a boom in empirical approaches and even that empirical work has infiltrated the legal community” (Holtermann 2019). However, this may not be so obvious, at least on a European scale. Indeed, quantitative research focusing on European-based law journals from 2008 to 2017 has shown that the popularity of empirical legal research in Europe “is debatable” (van Dijck, Sverdlov and Buck 2018, 105) and that the “supposed increase of ELR is questionable” (van Dijck, Sverdlov and Buck 2018, 105).

For at least four reasons, then, it is certainly worth asking how empirical methods fit into the landscape of European legal scholarship. The ambition of this special issue is to contribute to this questioning.

First, the issue is worth serious consideration simply because it has never been specifically addressed in the European context so far. There is no synthetic and qualitative knowledge on the development of empirical legal research across Europe. Yet the specificity of European legal culture alone justifies an interest in the development of empirical legal research in this context.

Second, the question is timely as there are several indications of the importance of the recent period for empirical legal research in Europe. For example, the creation of ESELS is an “initiative to create Europe’s own empirical research infrastructure rather than a belated European recreation of SELS” (Šadl 2023). However, we must remain cautious and learn from the North American example. Empirical legal studies has had several false starts on the other side of the Atlantic (Heise 2002), and in a way, Europe has already experienced one with the first CELSE conferences organised before the Covid pandemic. The future will tell whether empirical legal research will simply remain a kind of minority parallel movement or whether it will have a lasting influence on European legal scholarship. It will also reveal the extent to which European empirical legal research will differ from its American counterpart. At least two avenues are already emerging: European empirical legal research is likely to be more aware of the theoretical framework and epistemological frameworks in which it develops, similar to European legal realism in its day, and it could be more developed in the field of comparative law.

Third and most importantly, the growing importance of empirical studies in the European context raises a host of questions. For example, what are the past, present, or future trends in empirical legal research? What are the main results that can already be attributed to it? What is the uniqueness of European research in this field (compared to the US)? What is the degree of development of the use of these methods according to legal disciplines and European countries? What are the limits of these methods? What is their degree of complementarity and their added value in relation to the European doctrinal tradition? To what extent does empirical legal research contribute to the knowledge of the law itself and/or its functioning in society? To what extent is the European context likely to shape the development of empirical legal research? What is the uniqueness of European empirical legal research?

Lastly, while the development of empirical legal research itself is important, it is also crucial to document its progression and to map out its future. This is essential because it helps to remain inclusive and communicate with the doctrinal tradition. It allows legal scholars who are not familiar with empirical research to gain a general understanding of it quite easily. Thus, it could prove to be a highly complementary tool (van Boom, Desmet and Mascini 2018) to existing methodological books (e.g. Epstein and Martin 2014; Lawless, Robbennolt and Ulen 2016; Leeuw 2016; Van Den Bos 2020; Kritzer 2021; Bijleveld 2023). This is also very important if empirical research is not to remain confined to a northern European club. It is necessary to disseminate empirical approaches even in countries where the doctrinal tradition remains unchallenged, which is likely the case in most European countries. Therefore, it is vital to continue publicizing empirical legal research, not only to engage in a race for technicality and the most sophisticated design, as the North American movement has done by locking itself into a form of quantitative zeal, but also to popularize empirical methods which, while not the most sophisticated, can make a significant contribution to legal knowledge. In other words, this special issue is also intended to be a springboard for the future.

8 Content of the Special Issue

To answer so many questions on and around the integration of empirical methods in European legal research, it would have been ideal to produce a comprehensive state of knowledge. It would have been ideal to have a wide-ranging mapping, not only on a European scale, but also by European country, in terms of the general evolution of the methods employed by legal scholars, as well as by legal discipline. More modestly, the aim of this special issue is to review some of the main trends in the integration of empirical research in the European legal context.

It takes an uncompromising look at the epistemological foundations of empirical legal research, examines their development on a European scale, elucidates how they relate to existing research in the doctrinal tradition, and explores areas in which empirical methods can be mobilized without departing excessively from traditional legal scholarship and comparative law.

In short, this is about shaping Empirical Horizons in European Legal Scholarship.

Acknowledgments

We would like to express our gratitude to all the colleagues who agreed to take part in the Empirical Legal Research: a state of knowledge across Europe conference, which was held on 9 and 10 June 2023 in Toulouse. Special thanks to Hugues Kenfack, Matthieu Poumarède and Didier Krajeski for their institutional support. Lastly, we acknowledge the help of Matthieu Gaye-Palettes and the valuable feedback from our reviewers, which helped improve the quality of this manuscript. This research was funded by the Institut universitaire de France, the Swedish University of Agricultural Sciences, the Institut des études juridiques de l’urbanisme, de la construction et de l’environnement and the Law Faculty of the Toulouse Capitole University. I hereby declare that I have no conflict of interest in relation to the content and conclusions of this article.

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