157 research outputs found
Evidence-Based Regulation and the Translation from Empirical Data to Normative Choices: A Proportionality Test
Studies have shown that the effects of scientific research on
law and policy making are often fairly limited. Different reasons
can be given for this: scientists are better at falsifying
hypothesis than at predicting the future, the outcomes of
academic research and empirical evidence can be inconclusive
or even contradictory, the timing of the legislative cycle
and the production of research show mismatches, there can
be clashes between the political rationality and the economic
or scientific rationality in the law making process et
cetera. There is one ‘wicked’ methodological problem,
though, that affects all regulatory policy making, namely:
the ‘jump’ from empirical facts (e.g. there are too few organ
donors in the Netherlands and the voluntary registration
system is not working) to normative recommendations of
what the law should regulate (e.g. we need to change the
default rule so that everybody in principle becomes an
organ donor unless one opts out). We are interested in how
this translation process takes place and whether it could
make a difference if the empirical research on which legislative
drafts are build is more quantitative type of research or
more qualitative. That is why we have selected two cases in
which either type of research played a role during the drafting
phase. We use the lens of the proportionality principle in
order to see how empirical data and scientific evidence are
used by legislative drafters to justify normative choices in
the design of new laws
Vilhelm Lundstedt’s ‘Legal Machinery’ and the Demise of Juristic Practice
This article aims to contribute to the academic debate on the general crisis faced by law schools and the legal professions by discussing why juristic practice is a matter of experience rather than knowledge. Through a critical contextualisation of Vilhelm Lundstedt’s thought under processes of globalisation and transnationalism, it is argued that the demise of the jurist’s function is related to law’s scientification as brought about by the metaphysical construction of reality. The suggested roadmap will in turn reveal that the current voiding of juristic practice and its teaching is part of the crisis regarding what makes us human
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