Ancestors: Early Empirical Approaches to the Analysis of Legal Concepts in Modern Legal Theory

This chapter provides an introduction to thinkers who, starting in the 18th century, have advocated an empirical approach to jurisprudence. With regard to the 20th century, the focus will be on Scandinavian Legal Realism and American Legal Realism. These thinkers' approaches can be labelled as “empirical” in one or more of the following senses: 1) they undertake to explain legal concepts by relating or reducing them to empirical facts; 2) they seek to explain the directive function of law in empirical terms; 3) they develop an empirical methodology for the study of legal reasoning in general, and judicial reasoning in particular, and assume that the methods of legal theory must be continuous with those of the natural sciences. The three previous senses of “empirical approach” are interconnected: their common trait lies in the translation of legal concepts into empirical facts in order to make their functions amenable to empirical enquiry, both in directing conduct and in legal reasoning. However, those three senses need to be distinguished, since not all of them are expressly adopted by the thinkers under discussion.