Experimental jurisprudence
Experimental jurisprudence (X-Jur) is an emerging field of legal scholarship that explores the nature of legal phenomena through psychological investigations of legal concepts. The field departs from traditional analytic legal philosophy in its ambition to elucidate common intuitions in a systematic fashion employing the methods of social science. Equally, unlike research in legal psychology, X-Jur emphasises the philosophical implications of its findings, notably, for questions about whether, how, and in what respects, the law's content is a matter of moral perspective. Whereas some legal theorists have welcomed X-Jur's emergence, others have expressed reservations about the contributions it seeks to make. Background Experimental jurisprudence (X-Jur) is an outgrowth of the broader experimental philosophy (X-Phi) movement. Emerging in the early 2000s, and focusing initially on the folk concepts of semantic reference, knowledge, and intentional action, X-Phi represented a rejection of analytic philosophy's traditional 'armchair' speculation about common conceptual intuitions. As a similarly empirical approach to the analysis of folk legal concepts developed in the 2010s, the prospect of a novel method of legal theory, 'experimental jurisprudence', was recognised. X-Jur shares analytic philosophy's interest in a range of questions, including the longstanding issue of whether the existence and content of the law is a matter of social fact alone. But X-Jur scholarship has argued that philosophers' appeals to the content of folk legal concepts ought to be tested empirically so that, the ‘big [philosophical] cost of rely[ing]... on… a concept that is distinct from that used by folk’, may be allocated correctly. Themes X-Jur exhibits two basic lines of inquiry into, respectively, the folk concepts associated with features of particular laws or legal methods that are common among modern legal systems, and the general folk concepts of law and of rule application or legal interpretation. Specific legal concepts One broad X-Jur research agenda concerns topics in ‘special’ jurisprudence. Legal theory often attributes the conceptual elements of common legal rules to particular ethical theories or to certain descriptive (non-moralistic) sorts of judgment. X-Jur has challenged many of these traditional theoretical understandings. For instance: It has been argued that empirical data about people's ordinary causal judgements supports a model of legal causation that, contrary to legal doctrine, is not purely descriptive in nature but which features a role for moral judgements about norms. Studies on professional judges' ascriptions of criminal intent (mens rea) have been reported that suggest that, just like folk ascriptions, judicial ascriptions of intentional action (guilt) are affected by the moral valence of the consequences of the acts in question. Ordinary people have been found to focus on the conditions that are perceived to be essential to consent and so may not consider an individual's consent (to sex, for example) to be nullified by the violation of a condition that the individual herself considers to be a prerequisite. This result has been taken to explain courts' failure, in variety of contexts, to apply the autonomy-based model of consent to which many ethical theories subscribe. Many legal theorists and judges argue that statutes