Yun-chien Chang, University of Chicago Law School and Academia Sinica, Institutum Iurisprudentiae, and Peng-Hsiang Wang, Academia Sinica, Institutum Iurisprudentiae, have published The Empirical Foundation of Normative Arguments in Legal Reasoning as University of Chicago Public Law Working Paper No. 561 and University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 745. Here is the abstract.
While empirical legal studies thrive in the U.S., this is not necessarily the case elsewhere. Yet even in the U.S., the way in which empirical work is useful for normative legal arguments remains unclear. This article first points out the junction between empirical facts and normative arguments. Both teleological and consequentialist arguments, in one of the premises, require “difference-making facts” which point out causal relations. Much empirical research makes causal inferences and thus constitutes an essential part in teleological and consequentialist arguments, which are typical normative arguments in legal reasoning. This article then offers a descriptive theory of legal reasoning. Some empirical research does not make causal inferences, it still falls within the domain of legal scholarship. This is because describing valid laws is a core function of doctrinal studies of law, and sometimes only sophisticated empirical research can aptly describe laws.Download the article from SSRN at the link.