What do paradigms mean in arithmetic

Do judges have to reckon with everything? Empirical Realities in the Legal System

Research Report 2016 - Max Planck Institute for Research on Collective Goods

Max Planck Institute for Research on Collective Goods, Bonn
Continental European legal thinking is traditionally far removed from empiricism and statistics. And yet, lawyers have been trying for over a hundred years to bring together knowledge of the current and the target state of society. These attempts had to adapt again and again to new paradigms of thought and are today aimed at the argumentative mastering of different world descriptions; insofar they are indispensable for legal work and will also have a decisive influence on legal training in the future. Complex legal realities require statistical legal thinking.

German lawyers like Latin idioms, especially when they make their lives easier. One of those idioms is iudex non calculat - “The judge does not calculate.” It means that arithmetic errors in the judgment may also be corrected retrospectively, although court judgments may actually no longer be changed after a certain time. That was the case with the ancient Romans, and that is what Paragraph 319 (1) of the German Code of Civil Procedure wants it to be today. However, this procedural rule is rarely meant when lawyers say “Iudex non calculat!”. Instead, they claim - often in jest, but sometimes very seriously - that no mathematical interests or skills should be expected from them. This convenient self-image has recently been shaken by empirical legal research.

Systematizing Realities: Legal Fact Research

“Recently” is a flexible term in law. If you look at the 1,800 years since Aemilius Macer formulated the “iudex non calculat” rule, the last hundred years are still “recent”. And it's been about that long since the lawyer Arthur Nussbaum published a pamphlet, the aftershocks of which we can still feel today: “One has become tired of empty dogmatics,” he wrote in 1914 and said at the same time, “What matters: namely the systematic scientific processing ... of those facts whose knowledge is necessary for a full understanding and Proper application of the standards is required ”[1, pp. 1, 3, 6]. With this, Nussbaum called on lawyers to strive for systematic (i.e. statistical) factual knowledge, expressly without giving up their traditional conceptual work. Legal empiricism was intended to complement legal dogmatics, that is, to combine being and ought, without immediately replacing legal methods with social science - which some of Nussbaum's contemporaries had advocated. According to Nussbaum, lawyers should see it as their own task to determine and document legal facts and to include them systematically in the analysis of legal issues. The judge should learn to count.

Structuring decisions: the normal range analysis

Nussbaum wrote this before the First World War, in the golden age of so-called science positivism, when there was progress euphoria across all disciplines about recognizing, understanding and measuring “reality”. How This euphoria of knowledge was measured only later, when new scientific paradigms - such as quantum physics, complexity research, social psychology, systems theory, philosophical hermeneutics, brain research, and Bayesian statistics - always came to the same conclusion in various variations: observation and observer cannot be separate, the world has no authorial (objectively omniscient) narrator. “Reality” suddenly turned into manifold “realities”, from the method of cognition that of justification, rationality no longer meant a logical derivation from “objective” circumstances, but the argumentative mastery of diverse political and social value discourses.

What does this new rationality of discourse mean for the realities of law? The currently most extensive textbook on legal methods (over 1,300 pages in two volumes) says that only a “systematic methodology” can bring the findings of empirical research “into a rational relationship with the elements of standard text interpretation”; this “normal range analysis” is not an intellectual glass bead game, but a very “essential factor of legal decision” [2, pp. 527-528]. Because even empirical findings are less factual than fixedsettlements, so value-bound descriptions of the world. Their statistical form of argument must not hide the rhetorical-discursive character of the empirical findings. Therefore, jurisprudence needs an "epistemology that is specially tailored to the legal field and its peculiar purposes and problems" [3, p. 88].

Conveying decision-making realities: evidence-based jurisprudence

If one takes a closer look at these “purposes and problems”, a peculiar parallel emerges: lawyers (especially judges) deal with pathological problem cases in which comprehensive empirical knowledge is important, but in the context of a practical individual case. This always requires a decision as quickly as possible, but at the same time goes into the experience of the discipline, so that it also indirectly influences all other similar cases. We know these symptoms from another area - medicine. Doctors also treat acute, individual pathological cases and need decision-making knowledge that is quickly available and as reliable as possible. This is what they get through what is known as evidence-based, a process for efficient screening and critical assessment of relevant empirical preparatory work. This knowledge process could provide valuable impulses for jurisprudence.

Legal evidence-based in this sense takes place in four steps: The (often unspoken) empirical preliminary questions have to be worked out from the legal question, previous research on this has to be found, it has to be evaluated critically (whereby certain research methods are valued more than others) and based on this explicit evaluation to answer the legal question [4]. This approach counteracts traditional dogmatic methods dialectically, as it were, as it confronts a dogmatic thesis with an empirical antithesis and unites it in an evidence-based synthesis. At the same time, this makes it clear that evidence-based evidence can neither dispense with or replace the argumentative autonomy nor the saturation of experience of law. That is why the Swiss legal philosopher Mastronardi described “legal thinking” a few years ago as follows:

“Law is a normative science. But not only: it must also recognize social reality. It is thus humanities and social science in one, a process of mutual translation between norm and fact. ... Jurisprudence must therefore at the same time be science of being and science of norms ”[5, marginal number 246].

What do judges have to expect in the future?

The evidence-based methodology shows that the speech about the judge who does not calculate is too radical. Lawyers may and must question empirical (including statistical) arguments, but only through serious and conscientious criticism of methods, not through habitual avoidance. Statistics is rhetoric [6]; Only a disciplined argumentative examination of “the” empiricism reveals the value of the knowledge gained in this way for a socio-political discourse such as that of law. For at least 35 years, the Federal Court of Justice has also repeatedly emphasized that judges “have to carefully and critically evaluate the reports of judicial experts” - but that is only possible with a basic knowledge of statistics and empiricism.

Lawyers are still poorly prepared for these challenges due to their training, but a change in the course content is becoming apparent: there are already the first chairs for empirical legal research (at the University of Münster and the European Business School Wiesbaden), lectures on statistics as an "analytical method" for lawyers (in Berlin, Bremen and Munich) and textbooks on statistics and empiricism in law [references in 7].

The more complex the realities of law, the more important a basic statistical understanding becomes, which is why the “future of rational jurisprudence” has recently belonged to the “masters of statistics”. But one of the most famous US judges - Oliver Wendell Holmes - wrote this as early as the turn of the century before last [8, p. 469], so perhaps it no longer horrifies us today.

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