Dothan: As If: Why Legal Scholarship Needs Assumptions

Shai Dothan (Univ. of Copenhagen - iCourts) has posted As If: Why Legal Scholarship Needs Assumptions (Seton Hall Law Review, forthcoming). Here's the abstract:

A common accusation against law and economics is that it is based on unrealistic and unreasonable assumptions, such as claiming that people behave rationally. This accusation may very well be true. But it should not stand in the way of progress in legal analysis. The reason is that when something is assumed about facts—for example, how people behave or, alternatively, about the best way to interpret a set of judgments—the test of this assumption is in whether the hypotheses built on it are supported or refuted by other facts. If an assumption does not lead to accurate predictions, it can easily be discarded. In contrast, conceptual analysis of law that tries to assess the nature of a legal norm or field, for example establishing whether investment treaty arbitration is a part of public international law or not, is not assuming anything about facts. Because the only substance that is played with is concepts, no facts can be brought to refute the argument, only competing narratives. The purpose of this paper is to explain why the process of making assumptions is necessary for legal scholarship and why it is impossible to understand the law without assumptions and it could be dangerous to try to do so.