The Empirical Foundation of Normative Arguments in Legal Reasoning

Abstract

Empirical legal studies are often challenged by traditional doctrinal legal scholars as irrelevant to normative legal reasoning. This article explores, through the lens of jurisprudence and by drawing on dozens of empirical works, the junction between empirical facts and normative arguments. Both teleological and consequential arguments, in one of their premises, employ “difference-making facts” which identify the causal effects of certain legal measures as reasons for normative claims. Empirical works make causal inferences and their findings thus constitute an essential part of teleological and consequential arguments, which are prevalent in normative legal reasoning. All causal-identifying empirical findings can be framed as the required empirical premise in teleological and consequential arguments. Finally, although some classical canons of legal interpretation, such as textual and systemic arguments, appear not to take the form of teleological or consequential arguments, the use of these specific legal arguments must nonetheless be justified by teleological or consequential arguments at the meta-level. Thus, normative legal reasoning, one way or another, must have empirical foundations.