11 Utrecht L. Rev. 1 (2015)

handle is hein.journals/utrecht11 and id is 1 raw text is: The Use and Incorporation of Extralegal Insights in Legal Reasoning
Ivo Giesen*
1. Introduction
1.1. The issue (or rather: the problem) at hand
Following the early example set by American scholarship and indeed American case law,1 over the last few
decades (legal) scholarship in Europe has produced more and more interdisciplinary or multidisciplinary
academic work2 relating to a wide array of topics that traditionally belong to the areas of private law
and the law of civil procedure.3 In these empirically-orientated legal studies,4 'extralegal knowledge,
i.e. empirical insights stemming from disciplines such as psychology, sociology, and economics, are
combined with existing (doctrinal) legal insights based on traditional legal argumentation techniques,
and then transformed into 'novel' legal knowledge to further different sorts of public policy aims. This
has often led to new thoughts on how to organize legal rules and procedures as well as on our thinking
about public policy issues. This century-old American trend has more recently been especially visible in
the UK, and to a lesser extent also in Germany and the Netherlands.'
*   Prof. Dr. Ivo Giesen (      ) is Professor of Private Law at the Molengraaff Institute for Private Law, Utrecht University School of
Law, and the programme leader of UCALL (the Utrecht Centre on Accountability and Liability Law). This paper was presented at the KNAW
Colloquium 'Civil Justice: Thinking and Deciding by Civil Courts', Amsterdam, July 51h & 61h 2012, and at the 'Legal Reasoning' symposion
organized by the Utrecht University School of Law on October 41h, 2013. An abridged Dutch version ofthis paper appeared in G. van Dijck
et al. (eds.), Circels. Een terugblik op een vooruitziende blik. Liber Amicorum Jan Vranken, 2013, pp. 217-231. The author wishes to
extend his gratitude for comments on earlier drafts of this paper to the two anonymous referees, to the speakers and participants at
the aforementioned KNAW Colloquium and Utrecht symposium, and especially to Rob van Gestel, Christoph Engel, Willem van Boom,
Elbert de Jong, Rianka Rijnhout and Lonneke Stevens for their valuable insights. The usual disclaimer applies.
1 The Supreme Court case of Muller v. Oregon (208 U.S. 412, 1908) is broadly considered to be the starting point in the US.
2  With this terminology I am referring to all forms of (legal) scientific research that incorporates, to some extent, insights form disciplines
other than law. I do realize that these terms are used in specific and often different meanings by different authors. See e.g. D.W. Vick,
'Interdisciplinarity and the Discipline of Law', 2004 Journal of Law & Society 31, no. 2, p. 164 and pp. 170-171, and Ii. Kroeze, 'Legal
Research Methodology and the Dream of Interdisciplinarity', 2013 Potchefstroom Electronic Law Journal 16, no. 3, pp. 50-51.
3  Although the reasoning deployed hereafter probably has a broader range, I will confine myself here to the field of private law, my own
field of expertise. See, generally, Th.S. Ulen, 'The Importance and Promise of Empirical Studies of Law', in P. Nobel & M. Gets (eds.),
New Frontiers of Law and Economics, 2006, p. 29 and p. 31 (with references). The rise of empirical legal scholarship is explained by Ulen
by pointing at the earlier emergence of law and economics (ibid., p. 32) and the need for the empirical testing of theories stemming
from that emergence. Cf. also E.L. Rubin, 'Law and The Methodology of Law', 1997 Wis. L. Rev. 521, p. 555, and J.M. Smits, 'Law and
Interdisciplinarity: On the Inevitable Normativity of Legal Studies', 2014 CriticalAnalysis of Law 1, no. 1, pp. 77-78. A large-scale overview
of the empirical work being done is offered in P. Cane & H.M. Kritzer, The Oxford Handbook of Empirical Legal Research, 2010, but the
specific question raised here is not addressed in that volume.
4   See Ulen 2006, supra note 3; G. van Dijck, 'Empirical Legal Studies', 2011 WPNR, no. 6912, p. 1105. In my phrasebook, 'empirical' would
denote all attempts to find out how and why the law is what it is and what effects the law has, see Ulen 2006, supra note 3, p. 30.
5 Several examples of this are to be found in the literature used in this paper. Cf. also J.A. Blumenthal, 'Law and Social Science in the Twenty-
first Century', 2002 S. Cal. Interdisc. L.J. 12, no. 1, pp. 1-4, and especially M. Adler & J. Simon, 'Stepwise Progression: The Past, Present,
http://www.utrechtlawreview.org / Volume 11, Issue 1 (January) 2015 / URN:NBN:NL:UI10-1-116723 /       R CA

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