Evidence-Based Jurisprudence. Methods and Epistemic Value of Empirical Legal Research, With Examples From Corporate Law

• Applicant: Professor Dr. Hanjo Hamann
• Subject Area: Public Law
• Term: from 2014 to 2015
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 263348997

Law requires factual knowledge. In order to set and apply general rules in a complex and increasingly interconnected society, the law depends on reliable empirical knowledge about causes and effects. Thus far, German jurists tend to invoke the ¿amorphous experiential saturation¿ of legal statutes as a source of generalizable ¿empirical judgments¿. The present book argues that while a wealth of anecdotal experience is certainly useful, it often leads jurists astray. It thus goes on to ask how legal science and legal practice (jurisprudence) can adapt empirical insights in a systematic and rule-based fashion, to use them productively for typical legal issues.To answer this question, the book seeks inspiration in other practical disciplines that had to bridge into basic science, turning especially to medicine. By explaining medicine¿s practice of ¿basing¿ decisions on evidence, transferring it to jurisprudence and integrating them into a coherent concept, the book for the first time aligns the methods of quantitative empirical research with jurists¿ normative epistemology. It develops practical rules of thumb for adapting empirical findings, which help jurists to appreciate individual studies and to acknowledge the limits of empirical research methodology. An important conclusion from this analysis is that jurists ought to rely less on illustrative primary studies, but instead on research syntheses and meta analyses.This method of adapting empirical findings is illustrated by specific examples from corporate law. After systematizing the state of empirical corporate law research in Germany and the US, one question relating to the rules on executive remuneration is used to outline different empirical approaches and to discuss their respective potentials and limits. The book concludes with an in-depth analysis of another subject known in corporate law as the ¿collegiality principle¿. This principle is laid out using legal doctrinal analysis, traced internationally in a comparison of twenty jurisdictions and eventually analysed using the instruments of ¿evidence-based jurisprudence¿. This analysis calls into doubt some of the as - sumptions about human decision-making behavior which underlie the collegiality principle.Evidence-based jurisprudence may therefore be understood as a transdisciplinary concept which allows systematically to discipline the quest for empirical knowledge, thus enabling its use for practical purposes. It helps to consciously and critically reflect on the law¿s relationship with reality, and to improve the bedrock of legal decision-making in the long run.

• DFG Programme: Publication Grants