Objectivity and the Law’s Assumptions About Human Behaviour
This paper analyses a hitherto neglected aspect of the law’s objectivity: the epistemic and methodological character of the law’s assumptions about human behaviour. As the law’s assumptions about personhood and human agency may come into conflict with empirical research in psychology and neurosciences, the law's claims of objectivity are challenged. Such a conflict suggests that these assumptions are counterfactual. Taking H.L.A. Hart's views on legal epistemology as a starting point, I suggest that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, philosophical theories of earlier ages and scientific knowledge. The task of the legal theorist is to provide a rational and critical foundation for these doctrines. Thus, legal philosophy does not only contribute to law’s objectivity through conceptual clarification but also invites legal scholars to get involved with substantive empirical claims and moral argumentation.
Péter Cserne. "Objectivity and the Law’s Assumptions About Human Behaviour" Objectivity in Law and Legal Reasoning. Ed. Jaakko Husa, Mark van Hoecke. Oxford: Hart, 2013.