Battling for the is-position in the field of law : the problem with case-law sampling

Abstract

It is well-known that the so-called 'empirical turn' in legal scholarship has launched a vicious critique of the scientific credentials of traditional legal scholarship, but the battle for the is-position in the field is far older than that. Through revisiting the debates between positivism and natural law and between positivism and legal realism, this article traces how legal scholars have answered and failed to answer empirical legal questions for decades. Diving into the specific question of caselaw sampling, the article assumes that traditional legal scholarship does have a consistent method of sampling, but that it is often not explicated because of writing style traditions in the field. It goes on to explore what that method is and addresses its benefits and drawbacks compared with new sampling methods applied in empirical legal scholarship. It finds that much of the apparent epistemological disagreement in the literature is mere methodological critique, which the field has lacked a language to adequately voice, and argues in favour of an eclectic approach.