Recent years have seen the unfolding of an increasingly fierce Methodenstreit, a battle of method, in legal scholarship. The battle revolves around competing conceptions of legal science – about its proper research object, theory and method. Some describe this development as an empirical turn (e.g. Shaffer and Ginsburg 2012), thereby referring to the apparently growing group of scholars from both within and outside law turning away from traditional doctrinal and towards novel empirical approaches to the legal field. Much is at stake in this battle. In the first instance, conflicting truths about law and the legal field. But this soon leads to changes on the ground. Ultimately, a successful empirical turn will significantly reshape the contours of legal education, which due to the size and importance of the legal profession will affect broader society. Nevertheless, the empirical turn is poorly understood. Discussions are marred by weak conceptualizations of “the empirical”, and by strong bipartisan sentiments pro et con.
This puts discussion at a frustrating standoff that cannot be remedied merely with more first-order empirical or doctrinal legal scholarship. What is required is a critical and reflective meta-study of the empirical turn as such. This in turn requires a combination of a philosophical analysis of what is or should meant by terms such as empirical and turn, with an empirical analysis of the actual scope of the alleged empirical turn and of the factors driving it. Logically, the former is a precondition of the latter and this contribution aims to provide such an analysis. Proceeding a priori and building on previous work (Holtermann 2019; Holtermann and Madsen 2016a; 2016b), the contribution aims to provide the conceptual framework necessary for an understanding of what is or can reasonably be meant by the empirical turn in legal scholarship, and for a subsequent empirical study of its scopes and of its drivers and inhibitors.