The Fact Versus Intuition Pendulum and Whether Empirical Legal Studies Has “Legs”

Posted by Jeff Lipshaw

There’s some navel-gazing out there about whether “empirical legal studies” as a discipline has, as they say in showbiz, “legs.”  Jonathan Simon started this at PrawfsBlawg with a speculation whether there’s a relationship between bull market, faith in science, and a tendency to empirical studies, and concludes, whether or not there’s anything to that hypothesis, this iteration may yet flourish.    At the risk of provoking my good friend and co-editor Bill Henderson, I thought I’d draw a fine distinction.

The question is whether empiricism is a methodology or a philosophy.  As a methodology, it will always have traction as long as we need data from the real world to draw conclusions about the real world.  As a philosophy – that’s another matter.    Michael Heise’s comment over at ELS Blog, in its own subtle way, raises that issue, by observing about Jonathan’s post and the comments:  “The discussion underscores the need for a thorough empirical study of empirical legal scholarship.”

The philosophical question is what do you do with that data once you have it.  What is true about it?  What inferences and predictions can you derive from it?  What is the relationship between the observer and the observed?  Whence comes the hypothesis that serves as the basis for the design of experiments and the collection of data?  What is the difference between explanation (from the standpoint of an observer) and the derivation of meaning (from the standpoint of the observed)?   Aristotle and Plato didn’t get the tensions between empiricism and idealism resolved, nor did Hume and Kant. 

I’ve seen the philosophy come down to a practical level.  Much of modern industrial management, under various buzz words and slogans, is all about using data rather than intuition, science rather than autocracy, to produce better quality products at a lower price – “total quality management”  “statistical production control,” “management by fact,” “data-based management,” etc.  That was a swing of the pendulum that accounted for much of the productivity revolution in the U.S. between the late ’80s and the bursting of the internet bubble.  But I would sit in the meetings with the management equivalent of empirical scholars, and argue with them about (a) the interpretation of the data, which is something – abductive, deductive, transcendental – but it’s not empirical, and (b) the polarity of fact versus intuition, and that, notwithstanding the present position of the pendulum, there was a place for both.