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Outsourcing the Law

A Philosophical Perspective on Regulation

Pauline Westerman

Not only can services such as cleaning and catering be outsourced, but also governmental tasks such as making, applying and enforcing the law. Outsourcing the law is usually recommended for its cost-efficiency, flexibility, higher rates of compliance and its promise of deregulation. However, lawmaking is not the same as cleaning and rules are more than just tools to achieve aims. In this timely book, Pauline Westerman analyses this outsourcing from a philosophical perspective.
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Chapter 7: Legal research and the empirical turn

Pauline Westerman

Extract

Chapter 7 revolves around the implications of outsourced law for legal scholarship. The idea of legal doctrine as a search for coherence in a more or less autonomous and self-replicating legal system is under attack. The many (often non-legal) actors involved in rule-making affect the self-referentiality of law in two ways: by introducing non-legal meanings to the concepts and by adopting a form of purposive meaning that is different from conditional reasoning which is characteristic of legal argumentation. Norms are thus converted into guidelines and advice, the merits of which are dependent on empirical generalisation. The pleas for empirical methodology are, therefore, understandable and recommendable, as long as there remains room for traditional legal scholarship with its focus on the (re)construction of legal material and clear (re)definition of terms.

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