A Guidance Book for Lawyers, Legislators and Regulators
In policy circles, including in the world of law making and justice, one of the ‘opinions chique’ is that theories are for academics and in particular for rainy Friday afternoons. It is even more popular to say that arguments need not to be taken seriously ‘because they are only theoretically relevant’. Unfortunately, also in serious publications on ELR, ‘theories’ are not high in the pecking order. In Epstein and Martin’s (2014) recent book, several chapters are dedicated to quantitative data-analysis but hardly a word is written about ‘theories’. We attach a more prominent role to theories in this book. In line with Kurt Lewin the adage is that ‘theory without practice is sterile, but practice without theory is blind’. This also applies to empirical legal research. Theories are conjectures that give a reasonable answer to a (research) problem. When policies, legal arrangements and institutions are developed by lawyers, politicians or others, assumptions (about cognitions, behavior and society) play a role. Legal psychologists refer to these assumptions as implicit theories (Quintanilla, 2012) while evaluators coined the concept of intervention theories. Intervention theories usually look into (cognitive, behavioral and institutional) mechanisms making interventions ‘work’. Elster (2007: 36) calls them the ‘cogs and wheels’ that bring the relationship between legal arrangements, policies and institutions on the one hand and the outcomes or consequences of these interventions on the other hand into existence (see section 4.3 where mechanisms will be discussed).
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