Theoretical Positions, Teaching Experiments and Learning Experiences
Edited by Bart van Klink and Ubaldus de Vries
Chapter 8: Empirical methodologies knowledge and expertise: a ‘necessary’ skill for lawyers?
Legal training focuses on the study of the nature of legal rules using ‘legal reasoning’. This emphasis on rules has the potential to obscure the importance of facts in the determination of the law. Judges use general facts about the world in developing and interpreting the law in addition to the facts they use that are specific to the dispute between the parties. Practicing lawyers present versions of the facts as truth in arguing their client’s case in court. Facts about society also provide an evidence base for lawmakers to formulate policy and draft new laws and rules. ‘Evidence-based’ practice is used widely in the fields of medicine and business. This chapter describes evidence-based practice. It argues that facts about society gleaned from social research form a legitimate evidence base that is important for legislative reform. An evidence-based approach seems an obvious step in formulating effective laws and providing legal solutions to social problems. Common sense suggests that the existing social evidence base should be used to assist legislators in developing and ensuring well-founded public policies leading to sound legislation. However, in law reform, the evidence base is often overshadowed by populist perceptions and political ideology. A recent legislative amendment to youth justice sentencing options provides a pertinent case study where the evidence base was largely disregarded.
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