Back to the Source of Law
A Proposal for Empirical Legal Studies
at the Legislator
Niels van Dijk
April 13, 2015
1
• Background
– Legal philosophy
– LSTS & Interdisciplinarity
– Ethnography
– Link with AIME project
• Proposal
April 13, 2015
2
Turning to Legal Practice
Turn away from legal
theories.
Approach phenomena by
turning to legal
practices.
Empirical philosophy of
law in action.
2 Empirical Studies
• Law Firm
• Courts of Commerce
A Conflict-based Approach
- Follow the matter of dispute as it proceeds
from techno-commercial sites of enterprises, law
firms offices, court registry, courtroom, judge’s
offices, until its arrival at judgment.
- The matter of dispute is here gradually turned
into a matter of fact and a legal object through
constant articulation by legal instruments,
techniques and vocabulary.
Life of the Legal Dispute
Summons:
Claim
Judgment
Conclusions
Pleas
proceedings
Reconstruction
Contraction
Extention
Condensation
Contraction
Proposal
Extention from Adjudicative
Practices to the Creation of Laws
in Legislative Practices
Legislation & Legal Theory
• Biased to adjudication:
– application of law by the judge
• Neglect of legislation:
– creation of laws by the legislator
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Legislation & Legal Theory
• Law is often disqualified as
result of political process or
power struggle.
• Law is taken as a given for
legal theory
• Study the exigencies of these
processes of creating laws
themselves.
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Legisprudence.
Turning from theory to practice
• A concern for a legal rational
theory of legislation
– Cohen (1950, 1982-83)
– Wintgens (2002 >)
• What about an account of
practices of legisprudence in
legislative networks?
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• Study the creation of laws in action by
an issue and conflict based approach
• Mapping the legislative networks in
which political issues are gradually
transformed into a law through a
series of specific tools, techniques,
conditions and interactions.
• Special focus on:
– the role of law as a co-actor within
these processes, especially through
its special techniques of ‘legistics’,
– the interfaces between law and
other practices.
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Research questions
1. How is a law constructed?
2. Which legal operations play
a role in this process?
3. How do these relate to the
actions of practitioners from
different practices?
April 13, 2015
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Research questions
1. How is a law constructed?
2. Which legal operations play a
role in this process?
3. How do these relate to the
actions of practitioners from
different practices?
April 13, 2015
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Research questions
1. How is a law constructed?
2. Which legal operations
play a role in this
process?
3. How do these relate to the
actions of practitioners from
different practices?
April 13, 2015
14
What is legal about legislation?
Which qualities make a bill a
suitable legal source?
With which techniques and
technologies of stabilization?
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Research questions
1. How is a law constructed?
2. Which legal operations play
a role in this process?
3. How do these relate to
the actions of
practitioners from
different practices?
April 13, 2015
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A heterogenous network
• societal (or technological) issues that
will lead to the gathering of those
concerned,
• the production of impact assessments
reports of these issues by scientists,
• the organizational and political
production of proposals that address
these issues,
• lawyers transforming these proposals
into texts suitable for the judiciary,
• the assessments of the economical
feasibility and social impact of the
proposed
law.
April 13,
2015
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Plan
• Analysis of the dominant images, models and
theories of legislation and its relations
between law, politics, organisation, science
and technology
• Mapping the legislative networks in
Administration
• Mapping the legislative networks in
Parliament
• Mapping the legislative networks in the
Council of State
• Description of the typical legal operations in
these settings
• Description of the observed relations between
law, politics, technology, organization and
science.
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Sites of Study
The research will follow the circulation of public
issues at the legislature through the
processes in which they are drafted:
• As bills at ministerial departments
– E.g. the Office for Intellectual Property
• How bills are further prepared, modified or
reported at the legislative commissions in
parliament
– E.g. those of science & innovation and justice
• How their legal quality is checked and
increased in the legislative section of the
Council of State.
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Legal Regimes
The preferred focus of the study will be
on issues that imply relations to
science and technology, or law itself
•
•
•
•
•
•
•
privacy & data protection,
intellectual rights,
liability,
environmental law,
medical law,
procedural law,
constitutional law
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The Philosophical Context
To a constructivist symmetry of
the fact/norm dichotomy
• Science studies have studied the
constructivist character of facts
(Fleck, Latour)
• And how social values and norms
enter into these constructions
(Fleck, Kuhn).
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• Everything becomes valueladen, normativities seem to
multiply everywhere
• What is a norm? Are norms
just given in this way?
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• Can legislative practices be
seen as the laboratory for
the material construction of
norms?
• Can they serve to
symmetrically reconfigure
the epistemological factnorm dichotomy?
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