Doctrinal Expertise, Empirical Knowledge, and Causation Jurisprudence

On the Tentative Rationality of Doctrinal Development

Research output: Contribution to journalArticle

Abstract

The article offers an account of the ways in which the influx of empirical knowledge with scientific pedigree is controlled by the doctrinal structures of law, using the development of causation jurisprudence in the law of negligence (in the United Kingdom) as the focus of the analysis. It depicts the engagement with empirical knowledge as a learning process constrained by normative characteristics of the legal practice and considerations of professional competence. The doctrinal structures of causation jurisprudence are analysed in terms of a three-level engagement with the fact-norm distinction. The paper argues that the discursive structures of doctrinal knowledge about law embody a pattern of rationality. And that pattern of rationality revolves around manifesting the dialectical relationship of normative and factual considerations in practical judgements. Legislative intervention in the common law must preserve that pattern of rationality.
Original languageEnglish
Pages (from-to)469-500
Number of pages32
JournalThe Theory and Practice of Legislation
Volume1
Issue number3
DOIs
Publication statusPublished - 2013

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jurisprudence
rationality
expertise
Law
legal usage
common law
learning process

Keywords

  • doctrinal knowledge
  • empirical knowledge
  • discursive control
  • facts and norms
  • factual and legal causation
  • but for test
  • loss of chance
  • common sense

Cite this

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abstract = "The article offers an account of the ways in which the influx of empirical knowledge with scientific pedigree is controlled by the doctrinal structures of law, using the development of causation jurisprudence in the law of negligence (in the United Kingdom) as the focus of the analysis. It depicts the engagement with empirical knowledge as a learning process constrained by normative characteristics of the legal practice and considerations of professional competence. The doctrinal structures of causation jurisprudence are analysed in terms of a three-level engagement with the fact-norm distinction. The paper argues that the discursive structures of doctrinal knowledge about law embody a pattern of rationality. And that pattern of rationality revolves around manifesting the dialectical relationship of normative and factual considerations in practical judgements. Legislative intervention in the common law must preserve that pattern of rationality.",
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AB - The article offers an account of the ways in which the influx of empirical knowledge with scientific pedigree is controlled by the doctrinal structures of law, using the development of causation jurisprudence in the law of negligence (in the United Kingdom) as the focus of the analysis. It depicts the engagement with empirical knowledge as a learning process constrained by normative characteristics of the legal practice and considerations of professional competence. The doctrinal structures of causation jurisprudence are analysed in terms of a three-level engagement with the fact-norm distinction. The paper argues that the discursive structures of doctrinal knowledge about law embody a pattern of rationality. And that pattern of rationality revolves around manifesting the dialectical relationship of normative and factual considerations in practical judgements. Legislative intervention in the common law must preserve that pattern of rationality.

KW - doctrinal knowledge

KW - empirical knowledge

KW - discursive control

KW - facts and norms

KW - factual and legal causation

KW - but for test

KW - loss of chance

KW - common sense

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