Practical Impossibility versus Scientific Impossibility

Recently I gave a lecture which touched on the differences between traditional legal research and scientific research. One point I made was that lawyers work on severe time constraint, and therefore have to give advice or make submissions which are just good enough within the limits of their resources. On the other hand, scientists have a longer time horizon, and therefore might be interested in solving a problem which takes a very long time. One example I gave was the solution to the Fermat's last theorem which took more than 350 years.

One consequence of adopting the lawyers approach is that legal scholars tend to make claims without taking the pains of obtaining scientifically acceptable evidence. Furthermore, claims make by empirical legal scholars which do not fit their intuitive understanding are dismissed as wrong, and suggestions are made that the empirical exercise is ill-conceived and has to be abandoned.

What this boils down to is that traditional legal scholars take practical impossibility as equivalent to an outright impossibility. If conducting a research is practically impossible, it should never be pursued. A legal scholar which takes a more scientific approach might see the problem differently. He might want to first know whether a solution to his problem is scientifically impossible. If there are suggestions that a solution is scientifically possible, but that the current techniques makes such solution practically impossibility, then the researcher will have to further develop the technique or methodology in order to come to a solution. Therefore, to a scientific researcher, only scientifically impossible problems are to be avoided. The solution to practical impossibility is to discover a better technique, or to refine an existing technique, until it is good enough to overcome the initial practical impossibility.

What this teaches us is that we should not dismiss off hand claims in empirical legal research which do not concur with our current understanding. They might be wrong, but they are wrong because the techniques are crude, and not that it is scientifically impossible to come up with the right answer. Most scientific ventures start off badly because the initial methodology is crude. But over time, as techniques are refined, the scientific approach will give us better answers compared to the intuitive approach. Legal reseachers using the scientific approach therefore will have to work doubly hard in improving their techniques in order to overcome the scepticism of traditional researchers.

Call for Papers: EMLE Mid-Term Meeting, Ghent, 15 February 2008

Dear Colleague,

The annual Midterm Meeting of the Erasmus Mundus European Master Programme in Law and Economics will be held on February 15th and 16th, 2008 at the Law School of the Ghent University. On Friday 15th February, a Law and Economics Conference will be organised providing slots for 15 presentations of a paper. Those interested in presenting a paper are invited to submit a copy of a full paper or an abstract (preferably attached in an e-mail message) to:

Dr. Jef De Mot
University of Ghent
Department of Foundations and History of Law
Universiteitsstraat 4
9000 Ghent, BELGIUM
Email: Jef.DeMot@Ugent.be

Cc:
Nancy Van Nuffel
University of Ghent
Department of General Jurisprudence and History of Law
Universiteitsstraat 4
9000 Ghent, BELGIUM
Tel.: 0032-9-2646807
Email: Nancy.VanNuffel@Ugent.be

Papers may be on any topic within the field of Law and Economics, but preferential treatment will be given to the following topics: regulation (including impact assessment), corporate law and litigation. The submission deadline is Tuesday December 18th, 2007.

The members of the Scientific Committee are:
Prof. dr. Boudewijn Bouckaert
Prof. dr. Ben Depoorter
Dr. Jef De Mot
Drs. Manu Dierickx-Vissers

Warmest regards,
Prof. dr. Boudewijn Bouckaert
Coordinator Mundus European Master Law and Economics
Director Department General Jurisprudence and History of Law
University of Ghent