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What is Empirical Legal Studies
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What is Empirical Legal Studies?

Empirical legal studies may be considered one branch of law and society studies, as broadly defined.  As early as 1964, a group of scholars in the United States formed the Law and Society Association (LSA), officially marking the beginning of this academic movement. But attention to the relationship between law and society in legal theory significantly predates this—for instance, Friedrich Karl von Savigny’s historical study of law or Sir Henry Maine’s contributions to legal history and anthropology of law.  The Legal Realism movement, inspired in part by Oliver Wendell Holmes, further shed light on the social dimensions of law.  Roscoe Pound emphasized the importance of “law-in-action” as opposed to “law-in-books,” and explored the disparity between them.

The 1960s witnessed the launch of the LSA(Law and Society Review) and its large-scale conferences; law and society research developed robustly and came into its own. Having inherited the empiricist orientation of Legal Realism, it emphasizes the investigation of how law actually operates in society.  Brian Tamanaha has called the investigation of the relationship between law-in-books and law-in-practice “the gap problem.”  Law and society studies has further refined the theory and analytical methods of Legal Realism, highlighting the role class, race/ethnicity, gender, sexual orientation and other factors play in the forming and challenging of the law-society relationship.  Thus, Critical Legal History, Critical Legal Studies, Critical Race Theory and Feminist Legal Studies may all be considered part of Law and Society Studies.

Law and society scholars have elucidated the limitations of legal formalism, the jurisprudence of concepts and conceptualism, and have critiqued the way in which these orientations tend to conceive of law as a value-neutral, closed system.  They have been criticized of constructing a “heaven of legal concepts” far removed from social reality, and disregarding the ways in which law is produced by and operates within society.  Law is in fact a system laden with culture, values, and ideology.  As such, it should not be conceptualized as merely a system of prescriptive norms.  In contrast with this view, law and society studies seeks at once to extricate legal scholarship from the bonds of legal formalism, while at the same time bridge the divide to the empirical sciences, in particular by bringing social sciences approaches to legal scholarship.

        Yet, as Austin Sarat, among others, has indicated, the “and” of “law and society” has multiple and seemingly contradictory connotations: it implies both the attempt to link different sciences, and hints at the paradoxical limitations of this type of linking. Although law and society research explores the relationship between law and society, “law” and “society” remain separate—that is, these concepts will continue to defy integration or reductionist definition in each other’s terms. The key then, is to create an environment in which researchers in both the legal academy and social sciences are empowered to collaborate and challenge epistemological boundaries.
 
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