Taming law: the risks of making doctrinal analysis the servant of empirical research

Empirical Legal Studies promises a constructive coming together of empirical and doctrinal legal research, allowing a more sophisticated and complete analysis of legal systems and law. However, it also creates the risk that doctrinal legal scholars will be tempted or pressured into producing research that fits the needs of empirical programmes: that they will seek to write about law in a way containing precise, testable, concrete propositions, and avoiding abstract, speculative, conceptual, ambiguous, expressive and incomplete ideas. Yet this latter form of writing, which could be understood as the development of new ideas, as theory-forming, as exploration of the relationship between ideas, or as experimentation with ways of expressing law's content, has traditionally played an important role in law's contribution to politics, society, and to wider thought. It may not be what mainstream empiricists consider to be science, but it is intellectually and socially important, and for this reason, more theoretically minded scholars of legal doctrine need to keep a healthy distance from the practical pull of empiricism, lest they give up precisely what makes them valuable.