Abstract:
The paper offers an account of the ways in which the influx of empirical knowledge with scientific pedigree is controlled by the doctrinal structures of law, using the development of causation jurisprudence in the law of negligence (in the United Kingdom) as the focus of the analysis. It depicts the engagement with empirical knowledge as a learning process constrained by normative characteristics of the legal practice and considerations of professional competence. The doctrinal structures of causation jurisprudence are analysed in terms of a three-level engagement with the fact-norm distinction. The paper argues that the discursive structures of doctrinal knowledge about law embody a pattern of rationality. And that pattern of rationality revolves around manifesting the dialectical relationship of normative and factual considerations in practical judgments. Legislative intervention in the common law must preserve that pattern of rationality.
Bodig, Matyas, Doctrinal Devices, Legal Expertise and Empirical Knowledge: The Doctrinal Structures of Causation Jurisprudence (June 1, 2013).
First posted 2013-06-04 06:42:00
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