Experimental jurisprudence (or “X-Jur”) addressesquestions of jurisprudence or legal philosophy by complementingtraditional philosophical analysis with empirical methods. Often thosemethods include survey experiments that examine laypeople’sintuitions about legal-philosophical thought experiments and conceptsof legal significance (e.g., causation, intent, reasonableness). Othertimes, experimental jurisprudence focuses on the cognitive processesunderlying legal reasoning. This entry reviews representative work inexperimental jurisprudence and discusses major objections andcritiques.

• 1. A General Overview
  • 1.1 Situating Experimental Jurisprudence Within Jurisprudence
  • 1.2 Conceptions of Experimental Jurisprudence
• 2. Research in Experimental Jurisprudence
  • 2.1 “General” Experimental Jurisprudence
    • 2.1.1 The Concept of Rule
    • 2.1.2 Coercion
    • 2.1.3 Legal Validity
  • 2.2 “Particular” Experimental Jurisprudence
    • 2.2.1 Criminal Law
      • 2.2.1.1 TheActus Reus andMens Rea Distinction
      • 2.2.1.2 Punishment
      • 2.2.1.3 Moral Luck
    • 2.2.2 Tort Law
    • 2.2.3 Property Law
    • 2.2.4 Contract Law
    • 2.2.5 Legal Interpretation
    • 2.2.6 Other Areas of Law
  • 2.3 Empirical Methodologies
    • 2.3.1 Psychological Methods
    • 2.3.2 Behavioral Methods
    • 2.3.3 Observational Methods
    • 2.3.4 Neuroscience
    • 2.3.5 Analysis of Naturally Occurring Language
• 3. Critiques of Experimental Jurisprudence
  • 3.1 Domain-General (Methodological) Criticisms
    • 3.1.1 Replicability
    • 3.1.2 Skepticism about Survey Experiments
    • 3.1.3 Over-Reliance on WEIRD Populations
  • 3.2 Domain-Specific Criticisms
    • 3.2.1 X-Jur’s Contribution to Traditional Jurisprudence is Irrelevant or Limited
    • 3.2.2 The Intuitions of Experts, Not Ordinary People, Matter for Jurisprudence
      • 3.2.2.1 Whose Views Matter?
      • 3.2.2.2 How Does Expertise Matter in Jurisprudence?
• Bibliography
• Academic Tools
• Other Internet Resources
• Related Entries

1. A General Overview

Experimental jurisprudence uses empirical methods—often modeledon the methods of experimental psychology—to study theoreticalor philosophical questions about law (see Prochownik 2021; Sommers2021; Tobia 2022). This includes questions within both general (e.g.,about the necessary features of law and law’s relationship tomorality) and particular jurisprudence, regarding specific legalconcepts: What is the relationship between contract and promise? Whatjustifies criminal punishment? And what does tort law’s standardof reasonable care require? The remainder of Section 1 provides adetailed introduction to the field, situating it in relation to moretraditional approaches towards jurisprudence (§1.1) and outlining differing conceptions of it (§1.2).

1.1 Situating Experimental Jurisprudence Within Jurisprudence

This entry assumes a broad conception of “jurisprudence”,which treats it interchangeably with “legal philosophy” or“philosophy of law” (see, e.g., Dickson 2022: 1), to referto the scholarly investigation of theoretical questions about law.Jurisprudence is often divided into general and particular (orspecial, or specific) jurisprudence. “General”jurisprudence concerns the nature of law in general (Plunkett &Shapiro 2017: 137), or the fundamental features necessary to,essential to, or associated with law (e.g., Schauer 2015).“Particular” jurisprudence examines philosophical ortheoretical questions about specific legal areas (e.g., contract lawor criminal law), often in the context of a particular legaljurisdiction (e.g., American) or tradition (e.g., common law).Experimental jurisprudence scholarship engages in both projects (see§2.1 and§2.2, respectively).

To situate experimental jurisprudence within the broader field ofjurisprudence, it is useful to consider that both general andparticular jurisprudence have traditionally used conceptual analysis,thought experimentation, and appeals to intuition (see Langlinais& Leiter 2016). To cite two prominent examples in generaljurisprudence, Raz (1975 [1990]) describes a society of angels as ameans of showing that there could be legal systems which are notcoercive (see§2.1.1), and Hart (1958) and Fuller (1958) explore the role of text andpurpose in legal interpretation by considering hypothetical violationsof the text of a “no vehicles in the park” rule (see§2.2.5). Both thought experiments aimed to trigger intuitions that aresupposedly shared by a wider audience (see§3.2.2 for discussion of the relevant audience). In particularjurisprudence, there are similar appeals to “our” sharedbeliefs, concepts, or intuitions. Consider the concept of causationthat is at the heart of criminal and tort law. In their foundationalwork on causation in the law, Hart and Honoré regard “theplain man’s notions of causation” (1959: 1) as relevant tothe law. In this spirit, they describe two principles that allegedlycharacterize causal reasoning among ordinary people (the contrastsdrawn between normal and abnormal events, and between free andintentional human actions and other events; 1985: 33). Similarly,court decisions often refer to commonsense intuitions and the ordinarymeaning of causal terms (Macleod 2019). Despite important criticismsof these traditional methods (e.g., Langlinais & Leiter 2016; Nye2022), conceptual analysis and/or appeals to intuitions are stillcommon in much of contemporary general (see Flanagan & Hannikainen2022: 1666) and particular (see Tobia 2022: 791–800)jurisprudence.

Why might traditional jurisprudence appeal to shared intuitions orunderstandings (in§3.2.2. we discuss the philosophical debate about whose intuitions areshared: everyone’s, laypeople’s, or experts)? One answeris to study concepts. Examining ordinary intuitions about law informsour analysis of theconcept of law. Another answer is toanalyze objects, taking ordinary intuitions about law to clarify thenature of law, or theobject ‘law’, notjust our concept of it. Most ambitiously, jurisprudence could useintuitions or conceptual analysis to clarify law’s necessaryproperties—not just the object of law aroundhere, butlaw as it could existanywhere.

There are great debates about which of these projects are at the heartof central works in jurisprudence. Those debates sometimes describethe various goals of conceptual analysis as either“modest” or “immodest” (Himma 2019: 32),employing a language initially developed by Jackson (1998). Thismodest/immodest terminology can invite confusion, and it involvesquestions that fall beyond this entry’s scope (see Jackson 2021;Nye 2017 for some complications). To avoid these terminologicaldifficulties, we set aside that terminology in this entry, focusinginstead on the three different types of projects outlined above.Conceptual analysis could be taken to illuminate concepts, objects, ornecessary properties. Again, there are debates about the aims ofvarious traditional jurisprudential projects: Is a particularphilosopher analyzing our concept of law, the object“law”, or law’s necessary properties? This entrydoes not have the space to settle these controversial questions, buttraditional and experimental jurisprudence have contemplated all threeprojects (see§2.1 and§2.2). Some philosophers appeal to intuitions to reveal our shared legalconcepts; others to inform thecontingent nature of law; andyet others to clarify law’snecessary properties (seealso Tobia 2023: 2508–2514).

1.2 Conceptions of Experimental Jurisprudence

Experimental jurisprudence often places itself as responsive to thetraditional legal-philosophical backdrop described in§1.1. Insofar as legal philosophers assert intuitions that we“all” share or recognize (e.g., Raz 1975 [1990: 159]), itis worthwhile to empirically examine whether those intuitions areshared (see, e.g., Miotto et al. 2023: 7). And insofar as legalphilosophy seeks to elucidate our concepts, like law (e.g., Flanagan& Hannikainen 2022), causation (e.g., Knobe & Shapiro 2021) orreasonableness (e.g., Tobia 2018), data about lay and legalparticipants’ understanding of these notions can inform thesephilosophical analyses. On this conception of experimentaljurisprudence, new empirical studies have not fundamentally shiftedtraditional philosophical inquiry. Legal philosophy already has atradition of appealing to shared understandings and ordinary concepts,and the new empirical methods simply help to evaluate theselongstanding claims and questions. On this view, X-Jur’s noveltyis methodological, not substantive: It does not steer legal philosophytoward entirely new questions; rather, it addresses existing legalphilosophical questions in a new way.

There is some disagreement, however, about what exactly is“new” about experimental jurisprudence. Even in the earlytwentieth century some philosophers adopted an empirical approach tolegal philosophy (e.g., Sharp & Otto 1910; see also T. Murphy 2014surveying the Norwegian empirical semantics movement from the1940s–1950s, which included research related to legalphilosophical questions), the legal realists emphasized the value ofempirical legal study, and a rich tradition of empirical work from themid to late twentieth century related to philosophy of criminal law(e.g., Robinson & Darley 1995), ordinary notions of law (e.g.,Finkel 1995), and legally relevant concepts like causation (see, e.g.,Alicke 1992; Spellman 1997) or the impact of outcome severity on moraland legal responsibility (e.g., Walster 1966; see generally Robbennolt2000).

Yet, X-Jurists often propose thatsomething new is happening.There are some important new features that render experimentaljurisprudence distinctive, even while it has various historicalpredecessors and influences, including naturalism in legal philosophy,law and psychology (see generally Spellman et al. 2025), legal realism(see generally Mikhail 2025), and (behavioral) law and economics.Arguably, the breadth of research questions has increased. There isnovel empirical research into questions of general jurisprudence (see§2.1) and many new questions of particular jurisprudence, including areaslike contract and statutory interpretation, and concepts like consentand reasonableness (see§2.2). Moreover, the X-Jurist methodological toolkit is expanding (see§2.3); for example, scholars today increasingly look to methods from naturallanguage processing (e.g., Baumgartner & Kneer 2025) and undertakecomparative, multi-linguistic, multi-cultural studies (e.g.,Hannikainen et al. 2021, 2022).

Least controversially, the term “experimentaljurisprudence” is also not new. It referred to a substantiallydifferent theory in the earlier twentieth century (Beutel 1934; 1971).In 2014 the term appeared with its current meaning (Solum 2014), as adescription of scholarship that uses empirical methods to makeprogress on legal-philosophical debates. The name under its currentmeaning suggests an analogy withexperimental philosophy, which uses empirical methods to inform philosophical debates fromethics to metaphysics.

Beyond differing conceptions of experimental jurisprudence’snovelty, there are also differing conceptions of its methodologicaland substantive aims. X-Jur often examines the views of laypeople,those without legal training or expertise, and critiques caution thatthis data should not “replace” insights from legalpractice (Jiménez 2021), that it should only“supplement” traditional philosophical method (Himma 2023:348), and that simply lifting lay views “wholesale” is abad idea (Dickson 2022: 113) (see§3 for a comprehensive overview). These critiques assume an ambitiousconception of experimental jurisprudence, on which its methodologicalgoal is to displace aspects of traditional methodology and itsnormative vision is for law to reflect ordinary people’sunderstanding of law.

However, many X-Jurists endorse a less ambitious conception of theproject. Concerning the methodological claim, experimentaljurisprudence has often framed itself as a useful supplement, notreplacement, of traditional philosophical methodology (e.g., Sommers2020: 2302; Tobia 2023: 2486; Flanagan 2024: 327). For instance,X-Jurists claim that relying on the intuitions of a larger sample ofintuiters is a more rigorous version of the already well-establishedpractice of relying on the authors’ own intuitions (see Macleod2019; Tobia 2023) insofar as doing so provides a more representativeportrayal of the pretheoretical commitments people intuitively share.But no X-Jurist denies that there is much to be done with traditionalphilosophical methods, e.g., by accommodating or debunking ordinaryintuitions, after the data is collected.

While some X-Jur research frames itself as contributing positively tothe analysis of legal concepts (see generally, Stich & Tobia 2016,for an overview of the similar “positive program” inexperimental philosophy), other X-Jur research is primarily concernedwith examining cognitive mechanisms and processes underpinningpeople’s intuitions related to law (e.g., Struchiner, Almeida,& Hannikainen 2020; Bystranowski, Janik, et al. 2022; Flanagan,Almeida, et al. 2023, similarly to a large part of experimentalphilosophy research; see Knobe 2016 for an overview). These“cognitive” projects highlight a different potentialcontribution from X-Jur to legal philosophy, even if legal philosophyis less interested in explaining the ordinary concept of law (andrelated concepts) than in developing a theoretical concept that canaccount for a variety of legal phenomena (e.g., Finnis 2011: 277; Atiq2025; Marmor 2013). Cognitively oriented X-Jur may supplement, forinstance, those traditional philosophical projects that aim to explainthe legal phenomena in terms of more basic phenomena such aspeople’s beliefs, attitudes and behaviors (e.g., Marmor 2013;Hart 1961).

In sum, just as different legal philosophers have different goals, sois the case with X-Jurists. Scholars working within X-Jur have takenempirical data to contribute to traditional conceptual analysis, toprovide negative or critical challenges to traditional methods andclaims, and to offer insight into the cognitive mechanisms underlyingpeople’s legal intuitions.

There are many other relevant dimensions to “conceptualizationsof X-Jur”, but one final dimension of importance isX-Jur’s orientation towards laypeople’s views of the law.Many (although not all) X-Jur studies examine laypeople’sbeliefs, language, or judgment. At first, it might seem thatX-Jur’s study of lay views is premised on an assumption that lawshould reflect those views. However, this strong substantive claim,that the law should generally reflect lay views of the law, is largelyunpopular within experimental jurisprudence. Some have defended thisclaim in a limited context; for example, the criminal law shouldreflect lay views of the law, to promote compliance or democracy(e.g., Robinson & Darley 1995; Robinson 2000; Kleinfeld 2017). Butmuch of experimental jurisprudence scholarship treats correspondencebetween ordinary and legal concepts as, at most, offering (defeasible)reasons for law to use the ordinary concepts. Many scholars ultimatelyconclude that the lay view should be rejected. For instance, Sommers(2020) argues that the law should not simply adopt the lay concept ofconsent (see§2.2.4), and Kneer and Bourgeois-Gironde (2017) argue that the lay notion ofintent reflects bias, one that the law should seek to eliminate (see§2.2.1). Other X-Jur works emphasize that X-Jur’s empirical contributiondoes not directly answer this normative question (should law reflectthe ordinary concepts). Instead, X-Jur helps unearth facts thatcontribute to legal-philosophical debate. Because many of law’scentral concepts share a name with and plausibly relate to ordinarycounterparts (e.g., cause, consent, duty, intent, reasonable),empirical study of ordinary concepts can helpfully disentangle theordinary from the legal (see, e.g., Tobia 2022).

2. Research in Experimental Jurisprudence

2.1 “General” Experimental Jurisprudence

General jurisprudence is the part of legal philosophy that deals withuniversal questions about law. Work in general jurisprudence usuallytries to identify the necessary (e.g., Raz 2009: 24) or central (e.g.,Schauer 2015) features of law (for a slightly broader definition, seeDonelson 2023; see also Plunkett & Shapiro 2017). Traditionally,the field has studied topics like the connections between law andmorality (Bix 2000), the normativity of law (Plunkett, Shapiro, &Toh 2019), the structure of legal systems (Raz 1970 [1980]), thedefining characteristics of legal reasoning (Alexander & Sherwin2008), among others.

Research in general experimental jurisprudence has touched on many ofthese areas, including the relationship between law and morality(e.g., Huang 2019) and analogical reasoning in law (e.g., Braman &Nelson 2007). One general motivation for this research is to examinewhether people’s intuitions support particular theories orconceptual analyses of law and related concepts (see also Prochownik2021). In this section we detail three examples: X-Jur of the conceptof rule, coercion, and legal validity.

2.1.1 The Concept of Rule

One of the many tasks of general jurisprudence as defined above is tocharacterize legal reasoning (see, e.g., Schauer 2009). In particular,the field has dedicated much attention to legal interpretation and therole played by the concept of rule within it. The most famous thoughtexperiment imagines a hypothetical statute whose text prohibits“vehicles” from entering the park (see Hart 1958; Fuller1958; see generally Schauer 2008). The rule’s textstraightforwardly prohibits cars, buses, and tanks from the park. Butsuppose the rule’s underlying purpose is to keep the parkgoerssafe. If someone were injured in the park, allowing an ambulance intothe park for rescue would plausibly further the rule’sunderlying purpose. Does the rule prohibit an ambulance from enteringthe park? The text would suggest yes, but the underlying purpose no.Whether the folk concept of rule is driven by text, purpose, or bothhas philosophical implications for both conceptual (e.g., the waylegal reasoning differs or doesn’t differ from moral reasoning)and normative (e.g., should we engage in conceptual engineering withregards to the folk concept of rule?) questions (see Almeida,Struchiner, & Hannikainen 2023b for discussion).

X-jurists have studied the influence of text and purpose on ordinaryjudgments of rule violation, finding that both factors matter (Garcia,Chen & Gordon 2014; Struchiner, Hannikainen, & Almeida 2020).For example, Struchiner, Hannikainen, and Almeida (2020) presented layparticipants with different types of cases, following Schauer(1991):

1. core cases (the act is prohibited by both therule’s text and purpose, e.g., a person enters the park drivinga car at full speed);
2. overinclusive cases (the act is prohibited by onlythe rule’s text, e.g., someone mounts a working truck on apedestal as a monument inside the park, see Fuller 1958);
3. underinclusive cases (the act is prohibited by onlythe rule’s purpose, e.g., a person walks inside the parkswinging a chainsaw in all directions); and
4. off-topic cases (the act is prohibited by neither therule’s text nor purpose, e.g., someone walks calmly into thepark).

Participants were asked whether the agent in each of these four typesof cases violated the rule. They evaluated core cases (i) as mostoften rule-violating, followed by overinclusive cases (ii), and thenunderinclusive cases (iii). In contrast, off-topic cases (iv) werelargely understood as not rule-violating. That a substantialproportion of participants treat overinclusive and underinclusivecases as rule-violating suggests that both text and purpose influenceordinary rule-violation judgments. Moreover, that effect is detectableusing multiple methods (Tanswell et al. forthcoming; Engelmann et al.2024) and is present among children (Bregant, Wellbery, & Shaw2019) and across multiple languages and cultures (Hannikainen et al.2022).

Subsequent work has uncovered many more features associated withrule-based decision-making. Overall, text exerts a larger influenceover rule violation judgments than purpose, a tendency that is morepronounced among lawyers and which can be induced by monetarilyincentivizing coordination among laypeople (Hannikainen et al. 2022;Bystranowski, Hannikainen, & Tobia 2025). Research has also shownthat morally good purposes influence rule violation judgments to amuch larger extent than morally bad purposes, and that their influenceincreases under time pressure and with regard to highly foreseeablepurposes (Flanagan, Almeida, et al. 2023; see Almeida et al. 2025).Other research has emphasized people’s sensitivity to context intheir evaluation of the linguistic meaning (“text”) ofrules like “no vehicles may enter the park” (e.g., Tobia2020; Waldon, Condoravdi, et al. forthcominga).

Beyond text and purpose, other studies indicate that the rate ofenforcement (Wylie & Gantmann 2023), communal evaluation (Levineet al. 2024), and the abstractness or concreteness in which legalcases are described (Struchiner, Almeida & Hannikainen 2020;Bystranowski, Janik, et al. 2022) influence rule violation judgments.Overall, these results have led to a substantially more fine-grainedunderstanding of rule-based decision-making in law. But this isobviously not the end of philosophical investigations. Should lawyersprioritize text in interpreting rules? Should abstractness influencelegal determinations? These are questions that require normativeargument along traditional philosophical lines. Similarly,extrapolating from empirical observations to broader theoreticalclaims about, for instance, the relationship between law and moralityalso necessitates traditional philosophical argument.

Characterizing what is distinctive about legal reasoning is a taskthat straightforwardly invites empirical examination. One could arguethat this is not the most typical situation in general jurisprudence.Some of the field’s central questions are formulated in termsthat invite metaphysical and conceptual interpretations. How doesexperimental jurisprudence tackle these questions?

2.1.2 Coercion

As a second illustration of experimental contributions to generaljurisprudence, consider the relationship between law and coercion (seeMiotto 2021a). Some philosophers have argued that the presence ofcoercive mechanisms is a necessary feature of law (e.g., Kelsen 1941;Bentham [LG]), while others have argued that it is not. For example,an influential reading of Austin’s (1832) command theory of lawdepicts law as a series of commands of a sovereign backed by threatsof sanctions. Starting with Hart (1961), mainstream anglophone legalphilosophy has shifted away from the view that coercion is a necessaryfeature of law. Instrumental to this shift was the use of roughly thefollowing thought experiment: imagine a society of angels with severalpublic rules and institutions to ensure coordination, but withoutsanctions, which are unnecessary, as angels have perfect“respect towards their legal institutions” and lack“all desire to disobey their rulings” (Raz 1975 [1990:159]. See also: Miotto 2021b). According to Raz, such a system“would be recognized as one [a legal system] by all despite itslack of sanctions” (1975 [1990: 159]). Thus, he concludes,coercion is not a necessary feature of the concept of a legal system.With this, Raz doesn’t deny that extant legal systems arecoercive. In fact, he claims that law’s coerciveness “canbe said to be true not only of all known legal systems but of allwhich are possible in human society, given that human nature is whatit is” (1975 [1990: 160]). Nonetheless, we can conceive ofnon-human societies that have non-coercive legal systems.

Most, but not all (see Marmor 2001: 44; Priel 2011: 23; Himma 2020),legal philosophers working in this area seem to agree with Raz’sconclusion (Miotto 2021b), even if they might still insist thatcoercion’s centrality justifies its inclusion within the purviewof general jurisprudence (Schauer 2015).

How could experimental data on folk intuitions help advance thisdebate? Answering this question depends in part on how one construesthe object of philosophical investigation. As discussed in§1.1, some legal philosophers view their task as identifying features oflaw that would hold across all metaphysically possible worlds in whichlaw exists. For them, experimental data about actual intuitions cantherefore play only a limited role. However, we have also seen thatmost legal philosophers are interested in our actual conceptualrepresentation of law and would thus see experimental data as usefulin adjudicating jurisprudential debates. After all, if almost no onerepresents coercion as a necessary feature of law, it would be hard toclaim that our shared concept of law requires that law be coercive.Conversely, if almost everyone evaluated coercion as necessary for asystem to count as legal, this would support that there is aconceptual connection between the two. It is thus no coincidence thatphilosophers often appeal to shared intuitions, claiming, forinstance, that the society of angels would be recognized “byall” as a legal system (Raz 1975, but see Nye 2017), orthat most people wouldn’t recognize it as such (Himma 2020).Whether these appeals are universal or restricted to specific groups(e.g., legal philosophers or legal practitioners) is controversial(see§3.2.2).

Turning the society of angels thought experiment into anactual empirical study might help adjudicate who is right.Miotto, Almeida, and Struchiner (2023: 105) conducted a study assuminga universal appeal and found that most laypeople (59%) share theRazian intuition (35% rejected it). In fact, they found that when thethought experiment is formulated at a higher degree of specificity,people tend to accept even the possibility of a non-coercivehuman legal system (2023: 121).

These results vindicate a pre-existing jurisprudential claim about therelationship between law and coercion: hypothetical non-coercive legalsystems are conceptually possible. In other ways, however, the resultsalso challenge philosophical orthodoxy. After all, Raz claimed thathuman legal systems were necessarily coercive. And yet, participantswere willing to say that a hypothetical human society without coercionstill had a legal system.

This shows that general experimental jurisprudence might not only helpgather evidence for or against current philosophical theories (foranother example, see Roversi et al. 2023) but also help bring intoview new possibilities. Perhaps the clearest instance where this hasoccurred so far concerns the issue of legal validity.

2.1.3 Legal Validity

As a final example of general X-Jur, consider legal validity. Donelsonand Hannikainen (2020) set out to investigate whether Fuller’s“internal morality of law”—a set of eight principlesthat Fuller thought must be at least partially met by all legalsystems—receives widespread endorsement. In doing so, theyuncovered an apparent contradiction: participants assigned to onecondition tended to agree that compliance with Fullerian principleswasnecessary for something to count as a law, whileparticipants in another condition tended to say that actual lawsflaunted said principles. For instance, more participants agreed thatthe law as enforced in a hypothetical society called the Farawaynations “could not differ much from the law as formallyannounced”, than with the empirical statement that law asenforced “does not differ much from the law as formallyannounced”. This sounds contradictory because whatever isnecessarily the case must also actually be the case. Thus, if theenforcement of all possible laws must necessarily match up with theirformal announcement, it would follow that the enforcement of anyparticular law would adhere to the way it was formally announced. Onesimple explanation for this effect would be that participantsinterpreted “could” in a normative sense. However, theeffect held even for participants who described their interpretationof the necessity statements in an alethic, instead of a normative,sense (Hannikainen et al. 2021). The same puzzling pattern wasobtained among lawyers (Donelson & Hannikainen 2020: Study 2) andacross 11 different countries (Hannikainen et al. 2021).

Himma (2023) takes this body of evidence as a challenge to theusefulness of X-Jur, claiming that “if we assume that ourconceptual practices are coherent, it is difficult to see what theseresults could tell us about them” (2023: 365). Whileacknowledging the difficulty, recent work by X-Jurists has attemptedto demonstrate that the contradictory nature of the results onlyarises under certain assumptions about the conceptual structure of theconcept of law (see§3 for a more detailed discussion of Himma 2023).

To see the way conceptual structures might come into play ininterpreting the empirical results, it is useful to consider aso-calledthick ethical concept from outside the legal domain such as “courage”. We seesomeone as courageous when they engage in a risky action that issimultaneously normatively valuable. At least according to some viewson thick concepts, this means that both risk and normative value arenecessary conditions for courage. Accordingly, it would becontradictory to say that someone acted courageously when theydidn’t do anything valuable (see Willemsen & Reuter 2021 forevidence in that direction).

If the concept of law were a thick concept (see Enoch & Toh 2013for discussion of this possibility), participants in Donelson andHannikainen’s (2020) study would indeed have contradictedthemselves. For instance: suppose that legislative enactment andcompliance with the internal morality of law play the same roles inthe concept of legal validity that risk and normative value play inthe concept of courage. It would follow that a statute could onlycount as a law when it was enacted by a legislature and complied withthe internal morality of law. Hence, it couldn’t besimultaneously the case that (a) compliance with the internal moralityof law is a necessary feature of legal validity and (b) there are lawswhich don’t comply with the internal morality of law.

Donelson (2023), however, suggests that law might not be a thickconcept, but a dual character concept instead. Dual character conceptsare associated with two distinct application criteria, one descriptiveand the other normative. The canonical example is that of a scientist.Someone is a scientist in a descriptive sense if they engage incertain concrete activities such as performing experiments and writingscientific papers. But when someone who engages in the aforementionedactivities doesn’t have a sincere commitment to empiricalknowledge, most participants are tempted to say of them that“there is a sense in which they are a scientist, but if youthink about what it truly means to be a scientist, you would have tosay they are not truly a scientist” (Knobe, Prasada, &Newman 2013). If the concept of law has the same structure, therewould be a descriptive criterion determining one sense in whichsomething can count as a law and a normative criterion determining adifferent sense. Under this way of setting things up, there would beno contradiction: “The folk […] holds that [actual] lawsneed not obey Fullerian principles, buttrue laws must[…]” (Donelson 2023: 34).

The same idea has been independently considered as one way ofanswering the central jurisprudential question of whether unjuststatutes count as laws. In a pioneering paper, Flanagan andHannikainen (2022) have shown that a plurality of participantsconceptualize unjust statutes as law in one sense, but not true laws.Further research has expanded on those initial results, extending themto cases of unjust conduct that are not forbidden by statute (Flanagan& Almeida 2024) and for rule violation judgments (Almeida,Struchiner & Hannikainen 2023a).

While legal philosophers have long claimed that law has a “dualnature” (Alexy 2010) or a “dual character” (Finnis2007 [2024]), it has been argued that the dual character structureposed by experimental philosophers is substantially different fromthese previous treatments, despite the shared terminology (Almeida2024). Another strand of legal theory might claim that these studiessimply pick out an ambiguity in the word “law”, whichmight refer to two entirely different concepts (e.g., L. Murphy 2005;Shapiro 2011; Hart 1961; see Almeida 2024 for a response). It’salso worth noting that some are skeptical about whether dual characterconcepts provide a useful philosophical framework, claiming thatexisting theoretical tools better explain the linguistic patternsunder discussion (Phillips & Plunkett 2023; Atiq 2025).

Overall, general experimental jurisprudence is still in its infancy,even when compared to particular experimental jurisprudence (see§2.2). So far, only a small number of general jurisprudence questions havebeen addressed by experimental methods, and important criticismsraised about those few questions that have been addressed are stillbeing debated.

2.2 “Particular” Experimental Jurisprudence

Particular jurisprudence studies legal-philosophical questions aboutspecific areas of law. The same enterprise is also sometimes called“special” or “specific” jurisprudence (seeKhaitan & Steele 2023). We employ “particularjurisprudence” throughout the entry. Particular jurisprudence ispreoccupied with questions like: What justifies criminal punishment(e.g., Hart 1959); what is the relationship between our ordinarynotion of causation and causation in the law (e.g., Hart &Honoré 1959); what should the tort law standard of reasonablecare require (e.g., Keating 1996); what is the nature of propertyownership (see, e.g., entry onproperty and ownership); what is the relationship between ordinary promise-making and legalcontracting (e.g., Shiffrin 2007); and should judges interpret a legalrule via its text or purpose (Hart 1958; Fuller 1958)? Unlike thebroad debates in general jurisprudence, debates about these particularquestions are typically steeped in details and context of particularareas of law and particular jurisdictions.

Particular experimental jurisprudence has contributed data andanalysis to each of the questions in the previous paragraph. In fact,researchers have produced an enormous amount of experimental work ofphilosophical value about many particular legal concepts. Given thespatial and thematic limitations of this entry, we can only skim thesurface of the literature. This section reviews some representativeexamples of particular X-Jur across five areas: criminal law, tortlaw, property law, contract law, and legal interpretation. Inselecting the examples, we sought to emphasize two recurringobjectives of research in particular X-Jur: (1) to clarify the extentof correspondence (e.g., Knobe & Shapiro 2021;§2.2.2) or divergence (e.g., Sommers 2020;§2.2.4) between folk concepts and their legal counterparts, and (2) toestablish whether the application of legal concepts is driven byreliable or unreliable (e.g., Kneer & Skoczeń 2023;§2.2.1) cognitive processes.

2.2.1 Criminal Law

Criminal law is a branch of law with salient connections tolaypeople’s sense of justice and morality. Many of the behaviorsconsidered by society as wrong are also penalized by criminal law, andsome of the relevant objectives of criminal law are to protectsocially valuable goods and restore justice when wrongs against suchgoods are committed (e.g., Darley 2009; Robinson & Darley 1995).Moreover, criminal acts are usually sanctioned with especiallycoercive means, which raises the important philosophical question ofthe justification of criminal punishment, which divides retributivists(e.g., Moore 1997) and utilitarians (e.g., Bentham [PML]; see§2.2.1.2 “Punishment” below).

In this light, it is unsurprising that criminal lawyers oftenformulate or interpret legal norms to serve a common sense of justice(e.g., Robinson & Darley 1995: xv, 1). Many studies in theparticular X-Jur of criminal law thus examine the content of folkconcepts relevant to criminal law and the extent to which they overlapwith their legal counterparts (see, especially, Robinson & Darley1995). To the extent that legal theorists and practitioners refer toordinary intuitions when drafting, interpreting, or applying criminallaw, they may find such research valuable. However, whether moregeneral implications can be drawn for criminal law theory and practicefrom such research is a matter of discussion. According to oneposition in this debate, “the criminal codes of societies shouldbe broadly in accordance with the moral intuitions of the governedcommunity” (Darley 2009: 15). One reason for this is thatdiscrepancies between criminal codes and community views undermine thelaw’s moral credibility (e.g., Robinson & Darley 1995;Carlsmith & Darley 2008; Darley 2009); which may weakenpeople’s willingness to obey it (e.g., Robinson & Darley1995: 201–202). In contrast, others scrutinized thepsychological processes involved in people’s applications ofconcepts relevant to criminal justice, finding that lay judgments areoften affected by irrelevant factors or are otherwise subject tosystematic biases. This has led some to argue that legislators oughtto minimize the impact of laypeople’s moral intuitions oncriminal law (e.g., Nadelhoffer 2006; Malle & Nelson 2003). Below,we review examples of research that exemplify these two projects inX-Jur of criminal law.

2.2.1.1 TheActus Reus andMens Rea Distinction

In common law, the two constitutive elements of a criminal offense areactus reus (the action or conduct, the“external side of the criminal conduct”) andmensrea (the mental state of the actor, the criminalconduct’s “internal side”) (Fletcher 2007: 43).These elements constitute Coke’s well-known (1644: 6 [ch. 1])principle: criminal conduct combines a guilty act with a guilty mind(actus non facit reum nisi mens sit rea). Similarrequirements for committing a crime are also present in continentallegal systems.

Some work in X-Jur, however, has challenged thatmensrea evaluation might be completely decoupled from analyzing theexternal outcomes caused by one’s conduct. Supporting thischallenge, Kneer and Bourgeois-Gironde (2017) have found thatintentionality ascription among professional judges is sensitive tothe valence and the severity of the outcome caused by theprotagonist’s action in ways that closely mimic lay intuitions(e.g., Knobe 2003; for a meta-analysis of outcome effects onresponsibility judgments, see Robbennolt 2000). In one study, legalexperts read a story about a mayor who decided to build a highwayconnection despite adverse consequences on the environment. In onecondition, the consequences were severe (animals in the constructionzone died), in another one, they were mild (animals were temporarilydisturbed). Professional judges perceived the major’s action assignificantly more intentional when its outcome was severe. Theauthors of the study go on to argue that this mismatch betweenlaypeople’s and professionals’ intentionality ascriptionson one hand and the legal requirements ofmens reaon the other constitutes a bias in need of addressing (but seeProchownik et al. 2025; Tobia 2024).

Other work, however, shows that people are capable of distinguishingbetween the two constructs. These studies reveal thatactusreus andmens rea havedissociable cognitive and neural bases and that they independentlyaffect moral and legal judgments. For instance, Young, Cushman, et al.(2007) presented subjects with vignettes that varied in terms ofprotagonists’ beliefs (negative vs. neutral) and caused outcomes(negative vs. neutral). For example, in the “negative belief andnegative outcome” condition, the protagonist knowingly puts atoxin into her friend’s coffee, and the friend dies; in the“neutral belief and negative outcome condition”, shefalsely believes that she puts sugar into her friend’s coffeewhich turns out to be a toxin, and the friend dies. Afterward,participants judged whether what the actor did was morally permissiblewhile their brain activity was monitored.

The study found that a brain region associated with belief attribution(e.g., Saxe & Powell 2006; Saxe & Wexler 2005) was involved inparticipants’ moral judgments across all four experimentalconditions. However, they also found significant differences regardingthe role of belief attribution in forming moral judgment acrossconditions. For instance, cases of failed attempts were determinedsolely by belief attribution. Cases of successful crimes relied onbelief attribution to a lesser extent, plausibly because of thegreater role of causal information in forming moral judgments (Younget al. 2007: 8238–8239). Finally, cases of “unknowingharms” (involving neutral beliefs and negative outcomes) weredetermined by causal and belief attribution, but also involvedactivating brain areas associated with conflict. These findingssuggest how information about the actor’s belief (relevant formens rea in the law) and the outcome they cause(relevant foractus reus in the law) is encoded inthe brain and integrated into moral and legal judgment (Young et al.2007: 8235).

Cushman’s (2008) research further supports the idea thatintentional and causal analyses sometimes compete to determine moraland legal judgments. In one of his studies, participants werepresented with the following scenario: Brown and Smith are two runnerscompeting for a championship. During the banquet before the race,Brown sprinkles some poppy seeds on Smith’s food, believing thatSmith is allergic to them. Now, some participants read thatBrown’s belief was false and Smith was unharmed (“noharm” condition). Others read that although Brown’s beliefwas false, Smith died due to causes independent of Brown’saction (“harm” condition). Arguably, in both cases Browncommitted the same crime (a failed attempt to kill Smith) and,therefore, deserves the same amount of punishment. However,participants in Cushman’s study assigned significantly morepunishment to the agent in the “no harm” condition than inthe “harm” condition. One possible explanation for thesesurprising results is that, on the one hand, in the “noharm” case, the judgment of punishment relied straightforwardlyon belief attribution. On the other hand, in the “harm”condition, the independent causal chain led away from the perpetratorand could have “blocked” people’s assessment of hismental state (Cushman 2008: 371).

Together, these studies suggest that human moral psychology reflectsthe operation of Coke’s principle, requiring the combination ofmens rea andactus reus forcommitting a crime. However, they also indicate that information aboutmental states and caused outcomes contribute differently to a range ofmoral and legal judgments (e.g., crimes of attempts are evaluatedbased on belief attribution, successful crimes based on belief andcausal attributions), which raises a possibility of discrepanciesbetween the criminal code and lay intuitions.

Distinct criminal law systems conceptualize culpable mental statesdifferently. The Model Penal Code (MPC, seeOther Internet Resources), on which many state criminal codes in the US are modeled,distinguishes four categories ofmens rea: purpose,knowledge, recklessness, and negligence. For instance, a criminalresult is caused purposely if it was a “conscious object”of the perpetrator, knowingly if the perpetrator was“practically certain” that it would occur, and recklesslyif the perpetrator acted despite the “substantial andunjustifiable risk” of causing it (MPC, Section 2.02). Finally,the outcome is brought about negligently if the perpetrator wasunaware of the risk, although they should have been.

The assessment of themens rea element of crime inthe US is a task performed by a non-specialist jury, but are laypeopleable to assess the defendant’s mental state in accordance withthe MPC guidelines? This is an empirical question examined in somerecent X-Jur research. Shen et al. (2011) presented a sample ofjury-eligible Americans with various scenarios that differed in theperpetrators’ mental states (fourmens reacategories distinguished by MPC mentioned above and blamelessness).Additionally, the researchers manipulated the severity of harm, afactor known to affect mental state attribution (Shen et al. 2011:1326; see Knobe 2006; Machery 2008). After reading each scenario,participants decided how much the perpetrator should be punished. Theresults showed that participants exacted varying degrees of punishmentdepending on the perpetrator’s mental state in accordance withthe MPC, with one exception: They did not differentiate punishment forcriminal outcomes committed knowingly and recklessly—even whenparticipants had access to the MPC’s definitions ofmensrea. In a follow-up study, participants read thescenarios and classified the protagonist’s mental states intoone of the MPC’smens rea categories. In thissorting task, participants only did well in identifying purposeful andblameless crimes, but exhibited difficulties identifying other mentalstates. Other research has replicated this pattern, demonstrating thatlaypeople struggle to distinguish recklessness and knowledge whenevaluating criminal outcomes (even when trained on a more accessibleversion of the MPC guidelines; see Ginther et al. 2014) and to applythese doctrines appropriately when assessing criminal liability forcrimes involving attendant circumstances (i.e., although MPC requiresknowledge, laypeople reckoned recklessness sufficient for criminalliability; Jones, Montague, & Yaffe 2020).

In sum, these findings suggest that laypeople’s determinationsofmens rea fail to capture various subtleties inthe MPC—especially, between outcomes committed knowingly versusmerely recklessly. Moreover, they consider recklessness a sufficientcondition of criminal liability for crimes requiring knowledgeconcerning attendant circumstances. This may have serious implicationsfor jurors’ ability to correctly ascribemensrea, especially for crimes (e.g., homicide) where assigningrecklessness or knowledge of the outcome substantially affects theirlegal consequences (Shen et al. 2011: 1349). If jurors cannot makethis distinction properly or reliably, this may result in unequaltreatment of perpetrators committing the same crime (e.g., Ginther etal. 2014: 1329).

In this light, normative questions arise: Should the distinctionbetween knowledge and recklessness be abandoned by the MPC? Shouldrecklessness be a sufficient requirement for criminal liability?Potential answers to these questions are not straightforward and mayvary. For example, it could be argued that jury instructions shouldbetter explain the distinction between knowledge and recklessness tojurors or, if such clarification does not suffice, that thedistinction should be abandoned altogether (Shen et al. 2011: 1352,1354).

2.2.1.2 Punishment

As we have seen, a person who commits a guilty act with a guilty mindcommits a crime and is thus, at least in principle, liable topunishment. There are different views regarding how to justifypunishment in the philosophy of criminal law (see the entry onlegal punishment for a review). On the one hand, retributivists (e.g., Moore 1997; J.Murphy 2007) argue that criminal offenders should be punished becausethey deserve it. In other words, the offender’s“desert” provides a sufficient reason for punishment,irrespective of its consequences (e.g., Moore 1997). On the otherhand, consequentialists (e.g., Bentham [PML) argue that criminalpunishment is justified by its potential benefits—i.e., by itscapacity to deter, incapacitate, and/or rehabilitate (past or future)offenders. According to the deterrence version of this view, criminalpunishment deters future crime either by barring a specific offenderfrom repeating their crime in the future (specific deterrence) or bydissuading potential offenders from committing similar crimes in thefuture (general deterrence). Incapacitation prevents a specificoffender from undertaking criminal activities (at least) for the timebeing while serving their sentence. Finally, rehabilitation aims toreform criminal offenders (e.g., morally educate them) so they do notrepeat their crimes in the future. These are the most frequentutilitarian reasons for criminal punishment, but there are many more.For instance, punishment also serves a communicative function—itsends a message that the community disapproves of certain activities,and by doing so, it, among others, reinforces social norms prohibitingsuch behaviors in society and morally educates criminal wrongdoers(e.g., Nadelhoffer et al. 2013: 237, 240–241). A recent surveyof law professors found endorsement of many of these as ajustification of criminal punishment, including rehabilitation (92%),deterrence (82%), incapacitation (65%), retribution (40%); andexpressivism (35%); 3% of participants reported that there should beno criminal punishment (Martínez & Tobia 2023)

While philosophers and legal scholars have debated these differentreasons for punishing criminals armed with arguments, abundantexperimental work in social psychology and experimental economics hasfocused on examining laypeople’s punitive behavior and theirunderlying motives. Many of these studies, using differentexperimental techniques and paradigms, have been offered in favor ofthe intuitive retributivism hypothesis (see generally, Zisman &Rehren forthcoming), i.e., that people punish based on “justdesert” considerations rather than a utilitarian calculus.

For instance, Darley, Carlsmith, and Robinson (2000) presentedsubjects with ten scenarios involving a variety of intentionallycommitted harms that differed in the severity of the offense (aretributivism-relevant factor) and the likelihood of theoffender’s recidivism (an incapacitation-relevant factor). Theresearchers found that people’s decisions about how much topunish were primarily driven by the offense’s seriousness. Inthe following part of the study, participants were asked to reassignpunishments for all scenarios, adopting retributivist andincapacitation perspectives. Punishment assignments from theretributivist perspective closely mirrored those made beforehandwithout any instructions. In contrast, assignments from theincapacitation perspective relied more on the information about thelikelihood of the perpetrator repeating the crime; however, they alsoconsidered the offense’s severity. These results indicate thatpeople base their punitive decisions on just desert considerations bydefault, although they can also consider the incapacitationperspective when directly prompted to do so (see also Carlsmith,Darley, & Robinson 2002, for similar findings regardingretributivism and deterrence). Similarly, Carlsmith (2008) found thatpeople endorse utilitarian principles when formulated abstractly butreject them if they violate their sense of justice while decidingconcrete cases (see Carlsmith & Darley 2008: 207–208 for adiscussion).

Other studies examined people’s punitive behaviors in additionto punitive judgments. For instance, Carlsmith (2006) investigated thekind of information people seek while deciding on an appropriateamount of punishment for the committed crime (the so-called“behavioral process tracing” task; Jacoby et al. 1987).When given a choice, laypeople sought retributivism-relatedinformation before and more frequently than information related toincapacitation and deterrence, suggesting that they “punishprimarily on the basis of retribution” (Carlsmith 2006: 437; seealso replications based on a similar research paradigm: Keller et al.2010; Rehren & Zisman 2022). In another study, based on theexperimental economics paradigm, Nadelhoffer, Heshmati, and colleagues(2013) found that participants punished third-party players bydeducting their welfare at the cost to themselves regardless ofwhether others would be informed about the punitive deduction,indicating that punishment is driven by retributivist motives and notby the desire to communicate disapproval.

However, a recent X-Jur study points towards a different direction.According to Michael Moore (1997), the deserved suffering of thecriminal wrongdoer provides a sufficient reason for punishment—abelief that is supposedly shared by many. Bauer and Poama (2020)experimentally tested these sufficiency and pervasiveness claims. Theypresented participants with a thought experiment based on an actualcriminal case involving rape and robbery (Moore 1997). After readingabout the case, participants imagined that the sexual and violentimpulses of the previous offender were significantly impeded due to anaccident and that he had no further need to commit robbery due to alarge inheritance, eliminating the risk of repeating such crimes inthe future; nonetheless, he was sentenced to ten years in prison bythe court. Participants were then provided with different detailsregarding how much the offender suffered in prison and whether heunderwent a moral change, and evaluated the justness of the sentence.The results showed that both factors mattered for people’sjustness evaluations, providing limited support for the sufficiencyclaim. Moreover, participants endorsed retributivism explicitly inonly one out of three different measures of the participants’views on the goals of punishment, undermining the pervasivenessclaim.

Future experimental work should bridge the apparent inconsistencies inthe findings regarding folk retributivism and examine theirtheoretical implications.

2.2.1.3 Moral Luck

Moral luck is another puzzling phenomenon of philosophical (e.g.,Williams 1976; Nagel 1979) and legal (e.g., Enoch 2010) relevanceexamined by experimental research. Imagine two agents driving home atnight after consuming alcohol. They both get distracted while drivingand, while one of them crashes into a tree, the other fatally runsover a pedestrian. Although both agents are equally guilty of drivingunder the influence and equally had no control over the resultingoutcome, the driver who killed a pedestrian (“morallyunlucky”) would face more severe punishment than the driver whohit a tree (e.g., Cushman 2008; Young et al. 2010; Lench et al.2015).

Recent findings in X-Jur shed light on the psychological processesinvolved in laypeople’s judgments in such cases. Kneer andMachery (2019) investigated the impact of moral luck on a range ofmoral judgments (permissibility, wrongness, blame, and punishment). Intheir studies, one group of participants saw both vignettes aboutlucky and unlucky agents (designed to promote reflective comparison),while others only one of those stories (to mimic real-life conditionsin which people evaluate cases sequentially). In the former (jointevaluation) context, moral luck had a limited effect. In the latter(separate evaluation) context, moral luck intuitions appeared acrossvarious judgments, arising most strongly in the case of punishmentjudgments (cf. Cushman 2008). Arguably, such findings explain whyordinary intuitions and criminal codes are often in agreement; forinstance, “why legal systems often impose more severe penaltiesfor more negative outcomes” (Prochownik 2021) and assign greaterpunishment for successful crimes than failed attempts (e.g., in theUS, but see Model Penal Code; e.g., Cushman 2011; Enoch 2010).However, whether the lawshould depend on luck (Cushman 2011)is a normative question that cannot be answered by empirical dataalone. It touches on the broader philosophical question of whether weshould hold others responsible for outcomes beyond their control (seeEnoch 2010), with numerous implications for the philosophy of criminallaw.

2.2.2 Tort Law

Tort law reflects the civil law governing the consequences that followfrom a person’s act that wrongs another person (or theirproperty). For example, the tort of “negligence” appliesto a person who breaches a duty to act with reasonable care, when thatbreach causes injury to another person. As even this simple exampleillustrates, conceptual questions abound in the philosophy of tort.When exactly does someone act without “reasonable” care,and in what circumstances is such a breach the “cause” ofan injury? Traditional legal philosophy has studied these questions,and in recent years, X-Jur of tort has also contributed to theexamination of concepts like causation and reasonableness.

First, consider causation. Judgments about causation play a centralrole in legal reasoning, e.g., as a prerequisite for liability incriminal and civil contexts. Moreover, what counts as a cause underthe law is often taken to be the same as our notion of cause ineveryday life, or at least plausibly related to it (Hart &Honoré 1959: 1). But causation is notoriously tricky to pindown. For instance: imagine that John negligently crashes his car intoPaul’s fence. Did his negligence cause the damage? One notion ofcause (often referred to as a but-for cause) requires us to imaginewhether the outcome would have obtained in a counterfactual worldwhere John wasn’t negligent. That allows us to see thatJohn’s negligence is a cause of the damage to Paul’sfence: had he driven with appropriate care, the fence would be intact.But there are many other but-for causes that are necessary for thedamage to have occurred. Had the car dealership not sold a car toJohn, the damage wouldn’t have occurred; if John’semployer hadn’t changed headquarters, his commute wouldn’thave run through Paul’s yard, etc. It would be ridiculous todeem the car dealership or John’s employerresponsiblefor the damage to Paul’s fence. So, even though but-forcausation might be a necessary condition for the kind of legalresponsibility under discussion, it’s clearly not sufficient.Thus, an action that passes the but-for test will then be treated as acause in fact, though not everycause in fact willthen be treated as acause in law (or proximate cause).

In a series of studies, Spellman (1997) explored the role of suchcounterfactual reasoning in people’s causal attributions. Forinstance, one study investigated people’s causal attributions incases involving conjunctive causes in a temporal chain, i.e., asequence of causes that are each individually necessary and jointlysufficient for the outcome to obtain. Participants considered ascenario in which two players each tossed a coin for a chance to win$1000. However, the coins landed differently (one landed heads and theother landed tails), and as a result, neither player won any money.Participants’ causal judgments reflected a sensitivity to thetemporal order: such that when Player 2’s coin toss occurredafter Player 1’s coin toss, their action was seen as morecausally relevant to their loss—than when they occurredsimultaneously. Follow-up studies indicated that this effect reflectsa tendency to credit events with causal relevance to the extent thatthey change the probability that an outcome occurs. In sum,Spellman’s (1997) studies suggest that people spontaneouslycompute the contingency of an outcome on an event and assign causalrelevance to actions with the highest contingency (while also favoringactions that are temporally closer to their outcomes).

Early research in social psychology has focused on laypeople’sjudgments of causation in the context of unfortunate outcomes, showingthat probability isn’t all there is to it. For instance, Alicke(1992) described a car accident in which a driver, driving over thespeed limit, in combination with an environmental element (e.g., thepresence of an oil spill on the road), caused an accident in whichmultiple road users sustained injuries. Additionally, the studymanipulated the driver’s motivation for speeding: to hide ananniversary gift in the morally good condition, versus a vial ofcocaine in the morally bad condition. Although the driver’sactions were the same across conditions, they were seen as playing agreater causal role when speeding to hide a vial of cocaine than whendoing so to hide an anniversary gift. Follow up studies replicated theinitial effect, showing that in matching pairs of actions, theblameworthy variant is seen as more causally relevant in explainingmultiple downstream outcomes than the blameless variant—whetherthe action was necessary or sufficient (see also Knobe & Fraser2008).

Incorporating both counterfactual reasoning and the effects of normviolation on ordinary causation judgments, Joshua Knobe and ScottShapiro (2021) explored the concept of proximate cause through thelens of experimental jurisprudence. They highlighted a debate betweenformalists, according to which the notion of a proximate cause in lawis purely descriptive, and realists, for whom the notion of a legalcause relies on normative standards. By reviewing numerous studies incognitive science, the authors argued that judgments about causationdepend on a particular kind of moral judgment, specifically, ajudgment about whether the target action isnormal—bothin a descriptive and a normative sense. The authors then advanced anaccount of how causal judgments in both conjunctive cases (when causes1 and 2 are together necessary and sufficient) and disjunctive cases(when the presence of either cause 1 or 2 is on its own necessary andsufficient) can be explained by participants’ representations ofwhether the candidate causes are normal or abnormal. In closing, theauthors argued that the theory of proximate cause as causal selectioncan predict a wide range of highly visible decisions in US Americancase law. (For a critical review, arguing that the ordinary“abnormality test” is not the best explanation of legalcausation, see Sebok 2021 in Other Internet Resources).

As a second example, consider reasonableness, another central legalconcept, sitting at the core of the negligence standard in common lawtorts, as well as other standards in and out of tort law (Zipursky2015). There is rich philosophical debate about the nature of legalreasonableness, and many highlight the concept’s connection toordinary reasonableness or ordinary reasoning (e.g., Zipursky 2015;Gardner 2015; Geistfeld 2020). Is “reasonable” action whatmost people would do, cost-benefit justified action, ideal or virtuousaction, or something else?

Experimental jurisprudence has examined the ordinary notion ofreasonableness to inform these philosophical questions. Jaeger (2020;2025; forthcoming) finds that descriptive norms (e.g., perceivedaverage behavior) affect laypeople’s evaluation ofreasonableness, while cost-benefit norms (what is perceived to beefficient) do not. Drawing on research on the concept of normality(Bear & Knobe 2017), Tobia (2018; 2025) finds that lay evaluationsof reasonable quantities (e.g., a reasonable number of hours’notice for a landlord to provide before entering) are better predictedby ahybrid combination of average and ideal quantities(e.g., the average number of hours’ notice; the ideal number ofhours’ notice) than by either the average or ideal alone.Baumgartner and Kneer (2025) find that in natural language,“reasonable” is more like thick concepts (like“cruelty”) that have descriptive and evaluative aspects,compared to purely descriptive concepts (like “table”) orthin evaluative ones that have only evaluative content (like“good”). Beyond these studies about average versus idealversus hybrid theory, empirical research reports that lay evaluationsof reasonableness are subject to hindsight bias (LaBine & LaBine1996; Kneer 2022); when an action leads to a worse outcome (all elseequal) participants are inclined to evaluate the action as lessreasonable.

2.2.3 Property Law

Though there is some debate as to whether property is a philosophicalissue (see the section on this topic in the entry onproperty and ownership), some philosophers have explored philosophical issues in property law(e.g., Locke 1689; Snare 1972). In the domain of experimentaljurisprudence, researchers have interrogated the folk concept ofownership as a window into what it means for something to beone’s property. Does the evidence indicate a universal ordinaryconcept of ownership? If so, what philosophical significance does thishave? How does it bear on the common assumption that property law isfundamentally technical and even stripped of philosophical depth?

Evidence suggests that a concept of ownership emerges at a young age:children as young as two understand that an object’s owner neednot be currently using the object; and at three they prefer their owntoys to identical duplicates owned by others (see generallyNancekivell, Friedman, & Gelman 2019). At age two, youngchildren’s behavior already suggests some concern with ownershiprights, e.g., by protesting against a puppet’s seizure of anobject they recently made (whereas protests were weaker in reaction toseizure of a third-party’s object; Kanngiesser & Hood 2014).In another study, 4-year-olds applied similar principles to harmlessinterventions on others’ property as they did on others’body parts (Van de Vondervoort & Friedman 2015; see also Van deVondervoort et al. 2017): for example, they judged disapprovedinterventions on others as worse than disapproved interventions onthemselves—suggesting that children may acquire norms aboutproperty by extrapolating from norms about bodily autonomy.

Early research on children’s concept of ownership revealed that5-year-old children pay closer attention to information about the pastuse of an object over information about future use. Furthermore,attention to past use information plays a heightened role incircumstances in which first possession is indicative of theobject’s history (Friedman et al. 2013). To investigate whetherchildren view ownership as conferring the right of use or ofexclusion, Nancekivell and Friedman (2014) compared children’sjudgments of the potential uses of non-owned objects to the uses ofowned objects, and discovered that children view non-owned objects asamenable to multiple uses—much like objects they personallyowned, but unlike objects owned by someone else—indicating thatownership appears to primarily confer the right of exclusion, and notthe right of use to the same degree.

This short overview barely scratches the surface of the empiricalstudy related to property (for further reading, see Blumenthal 2010;Nadler 2018; and Nancekivell, Friedman & Gelman 2019). In sum,developmental research indicates that children’s concept ofownership may arise by extending their concept of the body, and thatit depends on an object’s history of use and confers arelatively persistent right of exclusion. In this regard, existingresearch points toward a rich intuitive basis for adults’beliefs about property. Although some philosophers have examinedissues in property, it is a comparatively overlooked area. X-Jurresearch offers a new way to make philosophical progress inunderstanding some of the property law’s fundamentalconcepts.

2.2.4 Contract Law

The notion of consent plays a central role in moral and legal theory.In an often-quoted passage, legal scholar Heidi Hurd (1996) notesthat

consent turns a trespass into a dinner party; a battery into ahandshake; a theft into a gift; an invasion of privacy into anintimate moment; a commercial appropriation of name and likeness intoa biography. (1996: 123)

According to the “canonical view of consent”, asarticulated in legal scholarship and moral philosophy, valid consentcan occur only when the consenter exercises their personal autonomy.This account renders consent invalid when, for example, consent isobtained using threats of physical violence, since the consent doesnot reflect the person’s autonomous choice. Similarly, consentis—on the canonical view—invalidated by material deception(see Sommers 2020: 2239). In cases of deception, the consenter’sautonomy is thwarted by the fact that knowledge about the act to whichthey are consenting is deliberately withheld.

In recent years, experimental research has gathered important insightsinto the way people reason about the validity of consent (e.g.,Sommers 2020; Demaree-Cotton & Sommers 2022). For instance,consider the following scenario:

Did Marvin consent to his surgery? In Sommers’s (2020) study,66% of participants affirmed that Marvin consented to the surgery,even though he was deceived by his doctor. Moreover,“participants saw the doctor as less deserving ofpunishment” in cases of deceived consent than in cases wherethere’s no assent at all (Sommers 2020: 2273). This same basicpattern was documented in other cases of consent by deception,involving sexual relations, police searches, and participation inscientific research: Overall, participants did not take deception todefeat consent.

Together, these studies suggest discrepancies between the folk conceptof consent and the canonical understanding that prevails in the law.Yet, jury instructions in the United States call upon jurors to employtheir own folk concept to inform their decisions, raising the concernthat they may deviate systematically from the legal understanding(e.g., by treating mere assent obtained through deception asconsent).

Viewing these features of the folk concept of consent as normativelyundesirable can inspire attempts to engage in “conceptualengineering”—a concerted attempt to redefine a concept inresponse to its perceived inadequacies. For example, scholars mightattempt to foster the adoption of an improved notion of consent thatprecludes consent obtained by deception and/or demands the exercise ofautonomy.

Other research has investigated the folk understanding of contracts.According to the doctrinal view, a mutual communication of assent(e.g., an offer from a buyer followed by acceptance of the offer fromthe seller) suffices to establish a binding contract. Wilkinson-Ryanand Hoffman (2015), however, show that participants consider acontract to be binding at a later stage—when the transaction iscomplete.

In one of the authors’ studies, participants were asked toimagine that they had signed a contract, and that the contract eithercame into effect immediately and could be nullified anytime in thefirst 72 hours, or that the contract would come into effect after 72hours unless it was nullified before then. Participants reported beingmore open to shopping around for a better alternative in the secondcondition (in which the contract was not in effect) than in the first(in which it was)—even though both groups of participants hadsigned the contract and were able to render it void. Similarly,participants appeared to view the private act of signing a contract asmore binding than an informal communication of assent to the otherparty. Lastly, the research reveals how people’s understandingof contract formation is influenced by moral norms regardingreciprocity: When describing an agreement to buy a used car,participants were randomly assigned to consider a seller who eithershows signs of commitment to their agreement (getting the car detailedand taking down a “For Sale” sign) versus a comparableseller who does not (because the car was recently detailed and parkedindoors). Participants were more reluctant to cancel the verbalagreement with the first seller, whose actions of getting the cardetailedafter the agreement (versus before) convey a greatercommitment. This suggests that norms of reciprocity underliepeople’s reasoning about the bindingness of contracts.

2.2.5 Legal Interpretation

Much of the experimental jurisprudence of interpretation has examined“ordinary meaning” (see Slocum 2015; Lee & Mouritsen2018; Tobia 2020), or the way an “ordinary reader” wouldunderstand a legal text. This concept is especially important incontemporary American legal interpretation, in which“textualists” seek to interpret law’s terms as theywould be understood by an ordinary or reasonable reader (see Scalia& Garner 2012). American courts have relied on dictionaries as animportant source of information about ordinary meaning. More recently,corpus linguistics (e.g., Lee & Mouritsen 2018) emerged as anotherway to achieve the same goal. A series of experiments (Tobia 2020)shows that, although legal interpreters see both dictionaries andcorpus linguistics as methods to uncover the same facts about language(ordinary meaning), the conclusions about language delivered from bothmethods diverge significantly from ordinary use as ascertained bysurvey-experiments. For example, while many dictionary definitionswould classify an airplane as a “vehicle”, common methodsin legal corpus suggest that an airplane is not within the ordinarymeaning (see also Lee & Mouritsen 2018). Dictionaries offersystematically more inclusive definitions, while corpus linguisticsreflect prototypical examples that are considerably narrower.

As an alternative to those methods, X-Jurists have usedsurvey-experiments to uncover whether specific“linguistic” interpretive canons accurately reflectordinary linguistic practices (e.g., Tobia, Slocum & Nourse 2022;Randall & Solan 2025). For example, consider the rule “nocars, buses, trucks or other vehicles may enter the park”. The“ejusdem generis” interpretive canonholds that when a list (like “cars, buses, trucks”) isfollowed by a catchall phrase (like “or other vehicles”),the catchall should be interpreted in line with the theme of the list.So the ejusdem canon holds that “other vehicles” should beconstrued to include only entities like cars, buses, andtrucks—perhaps including motorcycles but not including bicycles.Recent work finds that, even though laypeople have not been taught theLatin canon “ejusdem generis”, theirintuitive judgment about rule meanings reflects its guidance (Tobia,Slocum & Nourse 2022).

Other studies address linguistic issues relevant to specific cases.For example, several studies examined how ordinary people understandcausal phrases like “because of” (e.g., Macleod 2019,2025), an issue at the center of Bostock v. Clayton County, 2020. Asanother example, the question in Bondi v. VanDerStok, 2025, waswhether a non-assembled “gun parts kit” constitutes a“firearm” within the meaning of a U.S. firearms law.Waldon, Condoravdi, and colleagues (forthcominga) presented anempirical and linguistic analysis of artifact nouns, such as“firearm,” “chair,” and “table,”to inform the case. The U.S. Supreme Court referred to this linguisticanalysis of artifact nouns in its opinion, which concluded that yes,“firearm” includes some such gun parts kits. U.S. Courtshave also indicated interest in empirical methods to aid legalinterpretation. Several judicial decisions have cited corpuslinguistic studies, and in 2024, a Supreme Court opinion (Pulsifer v.United States, 2024 (Gorsuch, J., dissenting)) cited an amicus briefthat summarized an experimental survey study of how ordinary Americansunderstand negated conjunctions (Tobia, Egbert & Lee 2023).

Other studies have tested issues related to particular areas of law,such as contract law (e.g., Furth-Matzkin 2025; see also Ben-Shahar& Strahilevitz 2017; Mouritsen 2019) and treaties in internationallaw (e.g., Pirker & Skozeń 2022; see Macleod 2025, for anoverview). While much of the X-Jur work in this area employs corpuslinguistics (e.g., Lee & Mouritsen 2018) and survey-experiments(e.g., Tobia 2020), scholars have also proposed the addition of othermethods, such as word embeddings (Choi 2024). Very recently some lowercourt opinions have even cited ChatGPT in interpretation (e.g. Snellv. United Specialty Ins. Co., 102 F.4th 1208, 1221 (11th Cir. 2024)(Newsom, J., concurring)), a practice that has already generated somecritiques (e.g. Waldon, Schneider, et al. forthcomingb; Lee &Egbert 2024; Choi unpublished).

2.2.6 Other Areas of Law

As the previous sections demonstrate, there is a voluminous literaturein particular experimental jurisprudence. We have highlighted somemajor research areas, but inevitably, even this review omits importantwork. X-Jurists have also explored perjury (Skoczen 2022), evidence(Macleod 2023), health and disability law (Dorfman 2025), and,doubtlessly, much more that we lack the space to cover. TheNYU Press Psychology and the Law Series includes a number of outstanding volumes that present research in lawand psychology, including in tort and property law, but also familylaw, evidence, and environmental law. Many of these findings haveimplications for theoretical debates in jurisprudence.

2.3 Empirical Methodologies

As noted inSection 1, some researchers take experimental jurisprudence to be continuouswith the more traditional strands of jurisprudence. It is also not thefirst movement in legal research to embrace empirical methods. Thus,what marks it out against traditional jurisprudence, on the one hand,and quantitative approaches in fields such as legal psychology and lawand economics, on the other, is the use of empirical methods toinvestigate a broad range of philosophical questions about the law.But general talk of “empirical methods” obscures the richpalette of tools used by X-Jurists. To the extent that differentempirical methods play different roles in philosophical argumentation,understanding the various methods helps clarify the philosophicalpoints made by scholars working within the movement. Thus, in thissection, we aim to define and exemplify some of the methods currentlyin use within experimental jurisprudence.

2.3.1 Psychological Methods

In their simplest form, psychological survey-experiments contrastmultiple (often two) vignettes that differ from one anotherexclusively with regard to one property of interest, which is usuallyreferred to as the experimental manipulation or treatment.Experimenters also ask participants at least one question about eachvignette. At the analysis stage, this question will serve as thedependent variable to be explained in terms of the experimentaltreatment.

For instance, Kneer and Skoczeń (2023) were interested in whetherjudgments about the objective probability that an event would haveoccurred are affected by knowledge of the actual outcome in situationswhere legal responsibility is salient. For their first two studies,all conditions started with the following introduction:

Then, participants in the “Neutral” condition read thefollowing ending:

Participants in the “Bad” condition received a vignettethat ended differently:

Here, the treatment was whether the outcome was neutral or bad. Thus,this is the only factor that differs between the two versions of thestimuli. All else remains the same, including the questions thatparticipants are asked to answer. In this study, one such questionwas: “[H]ow likely was it from an objective point of view thatthere would be a flood this year?”.

In Study 1, Kneer and Skoczeń used a between-subjects design,meaning that participants were randomly assigned to read either the“Neutral” or the “Bad” ending. Contrasting theobjective probability estimations between these two groups revealed afairly large difference. Since the only thing that changes from onegroup to the other is the severity of the outcome, this means thatparticipants took into account theactual outcome (of aflood) in their assessments of how probable it was that a flood wouldoccur. In other words, the observed difference in the dependentvariable was caused by the manipulation of the independentvariable.

One important aspect of the experimental paradigm is that it is ableto detect effects that are unbeknownst to the participants themselves.Kneer and Skoczeń’s Study 1 can show that outcome severityaffects probability estimations even if participants themselves do notintrospectively or consciously recognize that it does so. This is onereason why survey-experiments are a useful supplement to armchairmethods, which usually rely heavily on introspection.

What the specific design employed in Study 1 cannot tell us is whethereach participant would see this difference between conditions asproblematic. Presumably, if participants take information about theactual outcome to be relevant in assessing the outcome’sobjective probability, the difference observed in Study 1 shouldemerge equally in an adaptation of the experiment in whichparticipants consider both endings. If instead they deem thedifference in the actual outcome to be irrelevant, their objectiveprobability estimations should not differ across conditions.

To test which of these were true, Kneer and Skoczeń ran the samestimuli as a within-subjects design, in which participants receivedboth versions of the vignette (with differently named farmers)side-by-side. In this modified design, there was no significantdifference in the dependent variable for both endings. The authorsinterpret this to mean that the folk concept of objective probabilityis outcome-insensitive. Hence, they characterize the pattern ofresults that occurs in the between-subjects design as a performanceerror in the way that people apply a non-moral concept in morallyladen situations.

This is just one example that illustrates how X-Jurists can useexperiments to interrogate philosophical problems. Experimentalsurveys are often much more complex, involving the independentmanipulation of several different variables and mixing elements ofwithin- and between-subjects designs. Still, the overall strategy fordrawing inferences about causal processes remains fundamentally thesame.

In addition to survey-experiments, some experimental jurisprudenceresearch uses non-experimental (or cross-sectional)surveysthat ask the same set of questions to every participant—i.e.,without introducing a manipulation. For example, Martínez andTobia (2023) surveyed law professors’ views on dozens of legaltheory debates, inspired by the Bourget and Chalmers (2014) survey ofphilosophers. The results clarify expert legal theorists’beliefs about central debates, from legal interpretation (e.g.,textualism or purposivism) to the justification of criminal punishment(e.g., retributivism or deterrence).

Other recent research has made use of other sophisticatedmethods—that do not rely on participants’self-report—to gain insight into the cognitive processes thatunderlie people’s reasoning about legal concepts. Someresearchers have advocated for the use of “eye-tracking”methods to better understand legal reasoning (see Engel & Rahal2022)—a popular method in psychology to document the trajectoryof participants’ visual attention during experimental tasks. Thekey principle is that, when information is presented visually (as inimages or text), participants must orient the stimuli toward thefoveal region of the eye and fixate on the stimulus for at least 200or 300 milliseconds to acquire the information. In this way,eye-tracking data can provide a source of insight into the informationprocessing underlying behavior during a given task.

2.3.2 Behavioral Methods

While most experimental jurisprudence has used psychological methodsto study human judgment, some employ behavioral methods and/or studyhuman behavior. For example, Sheppard (2012) sought to determine how alegal expert’s caselaw decisions depend on the amount of timeavailable to decide. An empirical study recruited law students in asimulated judicial decision-making exercise, in which someparticipants had a two-minute time limit to write an opinion andothers had unlimited time. The group with a time limit had a lowerstrength of conviction in their reasoning. For an overview of studieson the influence of factors like time pressure and rules versusstandards on judicial behavior, see Sheppard (2025). As a secondexample, Spamann et al. (2021) recruited judges from seven countriesto participate in a fifty-five-minute simulation of a judicialdecision. The study recorded the judge’s use of specificdocuments (e.g., briefs vs. statement of facts vs. precedent) tobetter understand judicial behavior.

In the neighboring discipline of economics, there is a long traditionof research that seeks to mimic dynamic social interactions in acontrolled experimental setting. This research methodology draws on asuite of “economic games”, in which multiple playersinteract under varying instructions that allow them to increase theirmonetary reward. The application of economic games to legally relevantbehavior has had a profound influence on the scientific understandingof legal phenomena and given rise to a unique subdiscipline, now knownas law-and-economics.

One of the most influential applications of economic games was gearedto understanding humans’ tendency to exact punishment onantisocial partners (Fehr & Gächter 2000). By employing avariation on the public goods game, this study documentsparticipants’ willingness to exact retributive punishment onnon-cooperative others, i.e., on those who fall short of the averagefinancial contribution to the common good. Participants tended toexact punishment, reducing the non-cooperators’ wealth, eventhough doing so implied a monetary cost (i.e., costly punishment),even in one-off games (where they themselves would not stand tobenefit from the efficacy of punishment in bringing aboutcooperation), and even when punishment occurs without communicationbetween the punisher and punishee (such that the punishee does notknow they have been punished; Nadelhoffer, Heshmati, et al. 2013). Inadaptations of the two-player trust game (Charness & Dufwenberg2006; Ederer & Stremitzer 2017) document the role of guiltaversion in sustaining trust and cooperation, in which apromisor’s aversion to disappointing a promisee underlies thepromisor’s generosity. To the extent that those findings usesophisticated empirical methods to address results that have been usedin philosophical arguments about the law, we can conceive of them aspart of X-Jur, their classification as law-and-economicsnotwithstanding.

2.3.3 Observational Methods

One of the inherent limitations of (artificial) experimental researchderives from participants’ intentional or unintentional tendencyto modify their behavior in reaction to the understanding that theyare being observed—and, particularly, to behave in ways that donot reflect their real-world conduct (see§3.1.2). To overcome this, some research in the social sciences turns toobservational methods, such as quasi-experimental techniques ornatural experiments, in which individuals’ real-world behavioris documented under conditions that approximate those of a controlledexperiment.

For example, Thompson et al. (2025) uploaded a random sample ofentries about past legal decisions in Ireland onto Wikipedia. They didnot announce this change, and simply observed the pattern of citationof these (and other control cases not on Wikipedia) before and afterthe upload. Thompson et al. report that Irish judges increasedcitation of the Wikipedia cases more than to the control cases, takingthis result to indicate that the judiciary turns to Wikipedia. Asanother example, consider Baumgartner and Kneer (2025), who examinethe ordinary concept of “reasonableness” by documentinghow the term is used in a corpus of naturally occurring language (seealso§2.3.5).

The previous two examples are explicitly situated withinlegal-philosophical debates, but there is abundant prior experimentalresearch documenting the phenomenon of ingroup bias—the ideathat individuals judge other members of their demographic orideological ingroup more favorably than non-members. This patterncould raise certain concerns for jurisprudence, namely, that judgesmay deviate from certain standards of impartiality by evaluatingingroup members in a more lenient manner than outgroup members.Research by Lee Epstein and colleagues (2018) examined this precisehypothesis by analyzing 4644 votes on 530 US Supreme Court casesinvolving free speech (between 1953 and 2014) as a function ofjustices’ political leanings. In line with evidence of ingroupbias, the study demonstrated that—while liberal justices weremore supportive of free speech overall—both conservative andliberal justices appeared to exhibit greater support for free speechon cases that aligned with their political values.

2.3.4 Neuroscience

Neuroscientific methods, including electroencephalography (EEG) andfunctional magnetic resonance imaging (fMRI), examine brain activity.Some of these methods have been applied to make progress in legalphilosophy. For example, a longstanding debate in philosophy ofcriminal law concerns the distinction betweenmensrea categories (see§2.2.1). For the purposes of criminal liability, what distinguishes“knowledge” from “recklessness”? Acollaboration of neuroscientists, lawyers, and philosophersinvestigated this question with neuroscience (Vilares et al. 2017;Jones, Montague, & Yaffe 2020). They presented participants withclear cases of knowing and reckless behavior and measured theparticipants’ brain activity with fMRI; then, they found that amachine learning algorithm trained on that data could correctlyclassify people as knowing or reckless 71% of the time (in somecircumstances), based on data about brain activity alone. They arguethat this supports a “detectable distinction” in the brainbetween knowledge and recklessness (Jones, Montague, & Yaffe 2020:21).

Others have applied similar methods to questions in criminal law (see,e.g., Buckholtz et al. 2008) and law and legal theory more broadly(see, e.g., Jones, Schall, & Shen 2021).

2.3.5 Analysis of Naturally Occurring Language

Experimental jurisprudence is increasingly turning to methods thatanalyze naturally occurring language. These methods include corpuslinguistics (e.g., Lee & Mouritsen 2018), machine learning,especially word embeddings (e.g., Choi 2024; Gries et al. 2024), andlarge language models (e.g., Arbel & Hoffman 2024; Engel &McAdams 2024; but see Waldon, Schneider, et al. forthcomingb; Lee& Egbert 2024; Choi unpublished). All these examples concerndebates about legal interpretation, but scholars have also used thesemethods to analyze particular jurisprudential concepts, likereasonableness (Nyarko & Sanga 2022; Baumgartner & Kneer 2025)and consent (Nyarko & Sanga 2022).

3. Critiques of Experimental Jurisprudence

Consider two types of critiques of experimental jurisprudence. Thefirst focuses on applying empirical methods to philosophical questionsmore broadly; therefore, they are also described as“domain-general” (Jiménez 2025: 79). Suchcriticisms apply to any attempt to inform philosophical debates usingempirical data and hold across a wide set of empirically informedtheoretical approaches (i.e., across experimental philosophy, not justX-Jur). These critiques include: (a) the problem of replicability, (b)limitations of survey and vignette studies, and (c) sampling from onlyWEIRD (i.e., Western, Educated, Industrialized, Rich, Democratic)populations.

The second type of criticism concerns the application of empiricalmethods tolegal-philosophical questions; therefore, they arealso described as “domain-specific” (Jiménez 2025:79). These criticisms focus on features uniquely associated with lawand the concepts essential to it. One such criticism aims to establishthat X-Jur’s contributions are eitherirrelevant tojurisprudence or of only limited significance, given the nature ofjurisprudence. A second type of domain-specific criticism is the“expertise defense”, which argues that X-Jur incorrectlyfocuses on laypeople, but to learn about the law and legal concepts,it should examine the judgments oflegal experts—suchas legal philosophers or officials.

3.1 Domain-General (Methodological) Criticisms

We will first discuss three domain-general critiques of experimentalmethodology as applied to solving philosophical questions.

3.1.1 Replicability

A recent effort to estimate the reproducibility of psychologicalscience concluded that only between 33% and 50% of studies publishedin high-ranking psychology journals in 2008 could successfully bereplicated (Open Science Collaboration 2015). Put simply, this impliesthat when re-running an experiment while adhering to theauthors’ methodological guidelines (in terms of sampling andprotocol) and ensuring ideal conditions under which to observe theeffect (i.e., high statistical power), the researchers’repetition of the experiment did not produce the initial publishedresult. More broadly, scholars in areas including psychology,political science, medicine, and behavioral economics (e.g., Camereret al. 2016) have examined replicability, reporting some replicationsand some failures of studies to replicate. Colloquially, thesereplication failures have been described as a “replicationcrisis”.

Given the close connections between the methods employed inpsychological research and those used in experimental jurisprudence(see§2.3.1), replication failures in psychology may have raised certain doubtsabout the trustworthiness of published findings in experimentaljurisprudence. Unfortunately, there is currently no estimate of thereproducibility of experimental jurisprudence, but Cova and colleagues(Cova et al. 2021) attempted to replicate 40 studies in theneighboring discipline of experimental philosophy published between2003 and 2015, finding a replication rate of approximately 70%. Thissuggests that experimental philosophy studies may be more trustworthy,as a whole, than studies in psychological science. To the extent thatX-Jur is more closely related to experimental philosophy than topsychology, that should give us reason for optimism.

This might be due, in part, to changes adopted by the scientificcommunity in reaction to the so-called reproducibility crisis. Sincethe publication of the Open Science Collaboration’s paper,researchers have adopted a series of research practices aimed atensuring reproducibility, such as making their data and analysesavailable online and reporting pre-registered studies.Pre-registration requires experimenters to pre-commit to variouschoices including sample size, the precise analyses that will beperformed, and inclusion criteria—in order to reduce“researcher degrees of freedom”, especially theresearchers’ freedom to hypothesize after the results are known(also known as HARKing) which is thought to be one of the main causesof the replication crisis phenomenon. Scholars have argued thatfollowing these practices improves reproducibility and increasesscientific credibility (see Nosek et al. 2018). To the extent thatmany works in X-Jur follow these guidelines (see, for instance, theopen data and stimuli for the cross-culturalExperimental Jurisprudence Cross-Cultural Study Swap project), we have reasons to be cautiously optimistic about thefield’s reproducibility.

Many experimental philosophers use crowdsourcing platforms to recruitparticipants, as this provides easy access to populations that aremore diverse than the convenience samples usually available in WesternCollege campuses (Behrend et al. 2011, see also§3). Recent research has found that the quality of data from one prominentcrowdsourcing provider (Amazon’s MTurk) has deteriorateddramatically in recent years (Chmielewski & Kucker 2020; Peer etal. 2021). This might raise alarms about the reproducibility of workin X-Jur to the extent that X-Jurists rely on data from this platform.Anecdotally, we know of many X-Jurists who have taken notice andswitched to different platforms and/or started to supplement theirdata with other recruitment methods. Future studies should assess thereproducibility of X-Jur directly, using systematic replicationattempts.

3.1.2 Skepticism about Survey Experiments

As we have seen, experimental jurisprudence deploys a number ofdifferent empirical methods to address its questions (§2.3), but many use survey-experiments (Hoeft 2023; see also§2.3.1). One well-known criticism in psychology is that theparticipants’ responses to vignette-based studies might notaccurately reflect their behavior in real life (for a critical reviewof the issue of ecological validity, see Holleman et al. 2020). Whilemuch X-Jur work aims to understand human beliefs and judgment, and notto predict human behavior, one should still worry about thelimitations of vignette studies: They are often abstract, limited indetail, and detached from real-world context. If their features departtoo heavily from those of real-life legal decision-making, we wouldnot be able to conclude much about the latter based on the former(Jiménez 2025). Versions of this critique may also apply totraditional philosophical thought experimentation, which is oftendeliberately abstract and decontextualized (for discussion about thisworry in experimental philosophy, see Machery 2017). As in traditionalthought experimentation, experimental jurisprudence sometimes seeks totest fundamental conceptual or legal criteria by either reducing ascenario’s detail or complexity or by considering exotichypotheticals.

While critical of over-reliance on one specific method, theseobjections to survey methods do not necessarily represent existentialthreats to experimental jurisprudence. Instead, they point towardsways in which the field would benefit from considering differentmethods, such as qualitative research and behavioral experiments (seeHoeft 2023). These methods would, according to critics, be bettersuited “to capture […] the fact that law is a complex,institutionalized, social and cultural practice” (Jiménez2025: 90). At the very least, however, the criticism as stateddoesn’t apply to the parts of experimental jurisprudence whichdon’t rely on survey-experiments, opting instead forobservational strategies, such as the studies that employ corpuslinguistics (§2.3.5).

3.1.3 Over-Reliance on WEIRD Populations

A further criticism, emerging from a broader issue in the empiricalstudy of the mind, was highlighted by a team of anthropologists andpsychologists (Henrich, Heine & Norenzayan 2010a; 2010b) in whatis now a landmark paper. Through a number of case studies, Henrich andcolleagues illustrate their broad claim that “most people arenot WEIRD”. Here, WEIRD refers to the acronym “Western,educated, industrialized, rich and democratic” and thepsychological peculiarities of individuals raised in this culturalcontext, through a flurry of studies comparing WEIRD and non-WEIRDsocieties. This fact serves as a note of caution against interpretingthe results of empirical studies, so often conducted in European andNorth American contexts, and increasingly through the use of onlineplatforms, as evidence of fundamental or cross-culturally robustpatterns of judgment (see also Blasi et al. 2022). This concern bearson the generalizability of research in experimental jurisprudence; andsome researchers have sought to address it by investigating whetherand how legal concepts operate in different cultural and linguisticcontexts (Hannikainen et al. 2021; 2022; Tobia, Hannikainen, et al.forthcoming).

This criticism is usually framed in terms of the diversity of researchparticipants, but it could also be raised with respect to researchers.Lack of researcher diversity can constrain or otherwise impact thequestions posed, theories developed, hypotheses tested, datainterpretations offered, and implications explored. Researchers in thebroader field of philosophy are unrepresentative in various respects;as just one example, consider gender. A recent study found that womenconstitute a smaller share of Ph.D.s in philosophy compared to evenmany STEM fields (Leslie et al. 2015). Such concerns certainly extendto sub-fields within legal philosophy. Much of general jurisprudenceconcerns debates among famous men (e.g. Hart–Dworkin) andco-citation analysis reveals general jurisprudence to be especiallyself-referential and isolationist, when compared to other areas oflegal philosophy (Bystranowski 2024). It is too soon to tell how X-Jurstands, either in general or comparatively to otherlegal-philosophical fields, but the diversity of its researchers isundoubtedly an important value to which to attend as the fieldcontinues to develop.

In concluding this section (§3.1), it is worth noting that allthree critiques could apply to experimental philosophy of anysubject—law, morality, epistemology, and so on. Versions ofthese general critiques might also be leveled at traditionallegal-philosophical methodology: Is one philosopher’s intuitionabout a thought experiment replicable, shared by (all) other legalphilosophers (§3.1.1), does the often abstract nature of thought experimentation render itinsufficient to inform theory about complex legal systems (§3.1.2), and does the philosophical literature rely too heavily on intuitionsof Western populations or philosophers of certain races, genders, orsocio-economic backgrounds (§3.1.3)? The debate about experimental jurisprudence has carried theincidental benefit of turning attention to these foundationalquestions about the general methodology of legal philosophy.

3.2 Domain-Specific Criticisms

In this section, we consider a number of critiques of X-Jur thatappeal to specific features of jurisprudence. Where the critiquesdiscussed in §3.1 could be leveled at many efforts to useempirical data to bear on philosophy (whether in jurisprudence,metaphysics, or aesthetics), the critiques discussed here are moreclosely connected to specific facts or claims about the law or thephilosophical field of jurisprudence.

This section considers two broad sets of “domain-specific”critiques. First, we consider objections that, given the nature ofjurisprudence, the contributions offered by X-Jur are eitherirrelevant or of limited significance (§3.2.1). Second (in§3.2.2), we consider the frequent objection that most X-Jur studies the wrongpopulation: ordinary people. Instead, this objection goes, X-Jurshould study populations with expertise in law or legalphilosophy.

3.2.1 X-Jur’s Contribution to Traditional Jurisprudence is Irrelevant or Limited

There is debate about whether X-Jur meaningfully contributes totraditional jurisprudence, given the nature of jurisprudence and thequestions it asks. One possible position is that X-Jur contributesnothing to these debates—the method is irrelevant. Perhapssurprisingly, few have defended that claim in print. Instead, the vastmajority of such critiques assert a milder position: X-Jur haslimited relevance to traditional jurisprudence (e.g., Dickson2022; Himma 2023; Jiménez 2021; 2025).

Some critics point to the limited usefulness of general X-Jur becauseof the nature of general theorizing about the law. For instance,Dickson (2022) is skeptical of what she calls “vox pop”techniques in legal philosophy. Although conceding that survey datamight be useful she argues that “such data could at best be astarting point, and something for the legal philosopher to work with,interpret, and extrapolate from” (2022: 114). This is so becauselegal philosophy is largely about extracting and interpretingpeople’s self-understandings in terms of law, which manifestthemselves (often implicitly) in a range of attitudes and behaviors inwhich people make use of and draw distinctions about the law (2022:113–114). These self-understandings “do not comepre-packaged and explicit such that the legal philosopher’s jobis merely to record and reproduce them” (Dickson 2022: 114).

At least some defenders of X-Jur appear sympathetic to thesecritiques, endorsing a similar distinction to Dickson’s betweenX-Jur as one “step” or one tool in the philosopher’stoolkit and X-Jur as a full “replacement” of traditionalmethods. For many X-Jurists, collecting data is only the initial step,with further steps requiring the interpretation and evaluation of thedata based on theoretical concerns (see discussion in Tobia 2023). Infact, one of the features that distinguishes X-Jur from otherempirical approaches to the law is its goal to inform traditionalphilosophical questions about the law (Tobia 2022, 2023;Prochownik 2021). Thus, these scholars argue, X-Jur’s approachbroadly is consistent with the general view of the character of legalphilosophy presented by Dickson (see also§1.2).

Many defenders of X-Jur also appear sympathetic to Dickson’ssecond point: we can only learn so much about people’s conceptsfrom eliciting intuitions in response tosurveys :

the self-understandings of those living under law are more implicit,and diffuse, than the “vox-pop” or “elicitingintuitions” notions connote. (Dickson 2022: 113)

The phrase “vox-pop” might suggest that X-Jur conductspublic opinion polls, but the vast majority of X-Jur research does notemploy a simple polling method. Instead, X-Jur uses varied researchmethods (see§2.3 for a review), especially survey-experiments. Unlike a poll,experiments can provide insight into which factors underliepeople’s judgments and which features characterizepeople’s concepts, even when these are not immediately clear tosubjects themselves.

This section has briefly reviewed the more common version of thiscritique of X-Jur: It offers a limited contribution to jurisprudence,but it cannot replace traditional philosophical inquiry. A closerinspection of this debate reveals that there may not be manysubstantial disagreements between these critics and the manypractitioners of experimental jurisprudence who see the method ascomplementary to or continuous with traditional legal-philosophicalmethods.

However, it is possible to imagine a stronger criticism stating thatlegal philosophy aims to reveal the deep nature of law as a phenomenonthat is not bound in any way by people’s concept of it (e.g.,Greenberg 2016: 1950). Under this view, any experimental endeavors toreveal the folk concept of law would be irrelevant to legaltheorizing. However, since this broader criticism equally applies tothe whole tradition of conceptual jurisprudence and not experimentaljurisprudence specifically, we will not address it here (see, forexample, Dickson 2022: 123–134 for a critical discussion).

Another critique claims that studies in general X-Jur (e.g., Miotto,Almeida & Struchiner 2023; Flanagan & Hannikainen 2022;Donelson & Hannikainen 2020) are of limited relevance totraditional conceptual debates in general jurisprudence because thesurvey questions used by researchers in general X-Jur do not makeexplicit all relevant implications of the differentlegal-philosophical positions under test. Consequently, they fail totrigger subjects’ actual beliefs about the law, because subjectswould presumably change their responses if they had knowledge of thedifficulties associated with them. Thus, these survey-experiments failto expose the conceptual practices of competent speakers and,consequently, cannot inform jurisprudential debates concerning thefolk concept of law. In other words, a survey could only tell ussomething about ordinary beliefs if it clarified to participants“all of the implications of an answer that might affect how theyrespond” (Himma 2023: 355). At the very least, the researchersshould make sure that survey responses reflect “all potentiallyrelevant uncontentious conceptual and logical implications”(Himma 2023: 355).

To give an example: Himma (2023) criticizes Miotto, Almeida andStruchiner (2023; discussed in§2.1.2) for not spelling out that saying the society of morally perfectangels has law “entails that it is not a necessary condition forthe existence of a legal system that it criminalises harmfulacts” (2023: 355). According to Himma, if it was made clear tothe participants that, in a society of morally perfect beings, thereis no need for criminal norms (as well as a vast array of other legalnorms that characterize human societies), their intuitions aboutwhether angels have a legal system would change, leading to differentresults. While other studies by these researchers arguably circumventthis specific criticism (see Study 5), there is no doubt that theyalso fail to specify all (even uncontentious) implications that couldbe relevant.

A strong reading of this criticism entails that no experiment couldever lead to conclusive evidence about folk concepts. After all, nomatter how long the survey vignettes and response options were, somepossible implications that could affect participants’ responseswould always be left to spell out. In that stronger variant,Himma’s objection leads to global skepticism about surveydata’s usefulness for solving conceptual issues in philosophyand other related fields (and would thus arguably belong to thedomain-general family of criticisms). After all, vignettes in moralpsychology, the psychology of causation, and many other complexdisciplines also fail to specify all potentially relevant implicationsthat might affect lay responses. Moreover, one might argue that thisis intentional. Psychologists refrain from providing explicittheoretical information to avoid leading participants to respond inaccordance with the theories that were supposed to be under test.

A milder interpretation of this criticism assumes that the researchersin X-Jur should always aim to clarify in their surveys all relevantuncontentious implications of adopting certain positions byparticipants. For example, according to this criticism, Miotto andcolleagues should describe in their study “what norms a societyof real angels would need in order to do what they need done”(Himma 2023: 355), but not other uncontentious implications that areirrelevant. An experiment containing this information would then leadto conclusive evidence about the relationship between the folk conceptof law and coercion. This criticism, whether successful or not,doesn’t challenge the relevance of X-Jurper se. Itsimply points out ways in which armchair philosophy might lead tobetter X-Jur. Also, the criticism does not seem to apply on equalterms to all legal-philosophical questions. For instance, one maydoubt whether there exists an uncontentious theory regarding therelationship of law and morality (Flanagan 2024).

3.2.2 The Intuitions of Experts, Not Ordinary People, Matter for Jurisprudence

Another important criticism of X-Jur that applies to both general andparticular X-Jur boils down to the claim that it studies the wrongpopulation. Most existing X-Jur studies laypeople. However, theexpertise defense claims, it shouldonly study experts (e.g.,legal theoreticians, legal practitioners, or legal officials).Laypeople’s judgments on legal matters are irrelevant to legaltheorizing, either because they are unreliable (Himma 2023),indeterminate (Jiménez 2021, 2025; Sebok 2021), or notauthoritative (Jiménez 2025). One needs many years ofuniversity-level legal or philosophical education (Himma 2023) andcompetence in legal reasoning (Jiménez 2021; Sebok 2021; Himma2023) to be able to competently address jurisprudential questions.Moreover, some claim that only the beliefs and attitudes of people incertain positions of authority—and not those of the populationat large—matter in answering questions about legal concepts(Jiménez 2025).

This criticism resembles the objection formulated by traditionalphilosophers against experimental philosophy, which became known asthe “expertise objection” or “expertisedefense” (see generally Nado 2014; but see Jiménez 2021:14–15). The expertise objection against experimental philosophyassumes that ordinary people’s responses to hypotheticalphilosophical cases (but not those of experts) are susceptible tophilosophically irrelevant factors and are thus unreliable. Therefore,it’s the philosophers’ intuitions that should matter inphilosophy.

The similarity between the expertise objection in general X-Phi and inX-Jur is especially close when it comes to questions in generaljurisprudence. For instance, one critic claimed that “advancedtraining in law or philosophy is needed to address conceptualquestions” (Himma 2023: 369). That would be the case because,although linguistic competence requires speakers to correctly applyterms to easy cases (i.e., cases in which the term clearly applies orclearly does not apply), it doesn’t include the ability tocorrectly decide whether the term applies in hard cases. So, whileordinary speakers may be able to decide when the term“law” applies in a variety of easy cases, they do not havethe deepened conceptual competence that would allow them to apply theterm accurately in hard cases concerning the borders of theterm’s application, such as those disputed by legal theorists(2023: 366–368). Doing so requires an extra skill to extractfrom these patterns “shared metaphysical views about the natureof the corresponding kind” (2023: 372), which can only beacquired by a special kind of academic training. This argument leadsto the conclusion that, in cases of conflict, lay intuitions areirrelevant (2023: 373).

Regarding questions in particular jurisprudence, the expertiseobjection takes a different form. Legal systems are at least partlyconstituted by social facts, such as the beliefs and behaviors oflegal officials (e.g., Hart 1961). Thus, the beliefs of legalofficials—but not those of laypeople—are partlyconstitutive of law. If that account of the nature of law is true (fordiscussion, see Adler 2006), then we should care exclusively aboutlegal officials as a population, given that it is their beliefs andactions (and, by extension, their concepts) which create legal meaning(Jiménez 2021; 2025).

A related critique of particular X-Jur has claimed that it has limitedexplanatory power with regards to legal theory and practice ascompared to traditional jurisprudence. Consider the research by Knobeand Shapiro (2021), discussed inSection 2.2.2. The paper’s main claim is that the effects of norm violationover the ordinary notion of causation mirror the case law doctrine ofproximate cause to a large extent. Moreover, they argue that this isso because the legal concept of a proximate cause builds upon theordinary notion of causation, even though it also departs from it insome ways. According to Sebok (2021), however, an alternative legalrule, known as the risk rule, explains contemporary case law evenbetter than ordinary causation can. While in some tort law cases theresults of applying Knobe and Shapiro’s “abnormalitytest” and the risk rule align, other cases are better accountedfor in terms of the risk rule. This, Sebok points out, “revealthe limits of the use of research into ordinary judgments aboutcausation for law” (2021: 4).

One response to this debate has noted that Sebok’s objection(risk rule runs counter to judgments of ordinary causation) is itselfoffering an empirically testable claim (Tobia 2022: 768). One couldthink of similar objections to other findings in particular X-Jurwhere skeptics would point to alternative legal sources as competingexplanations to the ones rooted in ordinary reasoning. All of thosewould depend on empirical facts about the legal rule’scongruence or incongruence with lay intuitions and relativeexplanatory merit.

The expertise objection against general X-Jur as conceived above facesat least two significant challenges. First, it is in “need tooffer a theory about why the opinions of experts is to be preferred tothe folk when it comes to law”; second, it “needs tospecify the sort of expertise required and to think about who has thatexpertise” (Donelson 2023: 37; for further discussion of thesequestions, see also Finnis 2011; Atiq 2025; Marmor 2013).

3.2.2.1 Whose Views Matter?

Let’s consider possible answers to thewho questionfirst. Who are the relevant experts capable of answering difficultconceptual questions in general jurisprudence? Critics of X-Jur haveproposed three primary answers: (a) legal philosophers, or perhaps thenarrower category of “theorists with PhD in philosophy orlaw” (Himma 2023: 371), (b) “lawyers” more broadly(2023: 372), and (c) “legal officials” (Jiménez2021). None of these options is free from controversy.

Consider the view that it’slegal philosophers whoseviews matter. It is not clear why legal philosophers’ intuitionsabout the law would be epistemically superior to those of laypeople(Donelson 2023; Flanagan 2024). For instance, many legal philosophersdid not attend law school, which may put into question whether theirunderstanding of legal systems is sufficient to decide hard conceptualquestions about the law (Donelson 2023: 38). Moreover, even if wewould only consider the views of legal philosophers who did attend lawschool, the mere fact that certain intuitions are shared by such groupdoes not in itself speak in favor of their accuracy; it may as well bethat people who endorse certain intuitions tend to become legalphilosophers (Flanagan 2024; cf. Cummins 1998). Finally, acceptingthat legal philosophers have a very important role in coming up withtheories that build upon folk concepts (as argued by Dickson 2022;Atiq 2025) isn’t to say that we shouldpoll legalphilosophers. Instead, one could accept that advice by using poll datacollected from any population as an input for philosophicalreflection.

How about legal practitioners or officials (Himma 2023; Jiménez2021)? It is arguable that at least some sorts of legal expertise(e.g., being an attorney or a judge) may provide individuals with apredictive advantage similar to the one scientific experts have overlaypeople, making them better candidates for relevant experts thanlegal philosophers (Flanagan 2024; cf. Donelson 2023: 37;Jiménez 2021). However, it is unclear that legal practitionershave a conceptual competence to decide general-level theoreticalquestions concerning the nature of law, as one can be a fully capablepractitioner of law without understanding its nature as a socialpractice (Jiménez 2025: 87); especially if one considers that“some jurisdictions and law schools fail to require aspiringattorneys to learn anything about such questions” (Donelson2023: 37). Moreover, prioritizing officials’ judgments aboutwhat the concept of law is has been charged with circularity--it isnot possible to define legal officials without a prior concept of law,which, therefore, must be decided in other ways than by consultinglegal officials (Flanagan 2024). Finally, this view has troublingconsequences for the traditional methodology of jurisprudence. Legalphilosophers are usually not legal officials directly shaping thelaw’s content. If so, then this version of the expertiseobjection implies that “today’s experimental jurisprudenceis largely looking in the wrong place—but so have decades oftraditional jurisprudence” (Tobia 2022: 769).

Ultimately, the choice of population might be less consequential thanthe debate might suggest, given that several recent X-Jur studiesfound similar patterns in how the folk and legal experts respond tohypothetical legal cases (e.g., Kneer & Bourgeois-Gironde 2017;Prochownik et al. 2025). Thus, for at least some questions, examiningordinary concepts also illuminates legal experts’ concepts(Prochownik et al. 2025; Tobia 2022: 765–770).

However, the correspondence between lay concepts and legal concepts isnot universal. Other studies have uncovered differences betweenlaypeople’s and legal experts’ concepts (e.g., Tobia 2024on the concept of intent). And other studies found that lay intuitionsdiverge from the law (e.g., Robinson & Darley 1995).

A final complication in this debate about “whose viewsmatter” is that there is sometimes disagreementwithinthese populations. Several experimental jurisprudence studies findthat laypeople disagree with each other (see, e.g.,§2.1.1. on laypeople’s rule violation judgments). And among experts,there is sometimes disagreement. For example, consider the question ofwhether experts endorse legal positivism. Bourget and Chalmers (2014:12) surveyedphilosophers, finding that only 40% endorselegal positivism; yet a study of American law professors finds that amuch larger proportion (74%) endorse legal positivism (Martinez &Tobia 2023). Even if a legal philosopher concludes that laypeople arenot the right population to consult, the choice of which expertpopulation (e.g., professors of philosophy or professors of law) makesa difference. And empirical work can surface useful facts about theexistence and nature of such disagreements.

3.2.2.2 How Does Expertise Matter in Jurisprudence?

Now, consider the second challenge faced by the expertise objection asapplied to general X-Jur—providing a story ofwhyrelevant expertise would make a difference (Donelson 2023: 37). Onepossible answer is that experts are capable of reconstructing sharedassumptions and implications of the conceptual practices that, inaddition to these practices themselves, determine the conditions ofconcepts’ application in hard cases (Himma 2023: 367). Himmaobserves that deciding hard cases involves considering counterfactualhypothetical cases—an ability that is essential for academictraining in law and legal philosophy. If so, then theorists in law andphilosophy who have undergone training in counterfactual reasoningwould have an advantage in addressing difficult conceptual questions(2023: 372). This story relies on the assumption that “peopleneed some training in counterfactual reasoning to do itcompetently” (2023: 372). However, scientific findings suggestthat the ability for counterfactual reasoning is a part of ordinaryhuman cognition that already emerges in childhood (Flanagan 2024; cf.Byrne 2016).

Another “why” answer (Jiménez 2021, 2025) statesthat legal experts have authority over the meaning of“law” because their conceptual practices andunderstandings largely shape the referent of this concept (i.e., theway the law operates in reality). However, others challenge that“law really is a concept fixed by expert opinion”(Donelson 2023: 37; Tobia 2022): Arguably, “law” is not aconcept determined exclusively based on the expert’s views, likeit is, for instance, in the case of scientific concepts (Donelson2023: 37; see also Adler 2006). This seems to find confirmation in thewidely shared view in jurisprudence that ordinary intuitions matterfor theorizing about the concept of law (e.g., Dickson 2022).

A closely related story focuses on particular legal concepts, such as“proximate cause” or “consent” (Jiménez2021). Again, the argument is that these concepts have their legalmeaning determined by legal authorities alone, even if there might besubstantial overlap with laypeople’s folk concepts. However,this would go against the perspective often explicitly taken injudicial and scholarly writing, which grants an important role toordinary people’s understanding of legal terms (Flanagan2024).

In concluding, consider a final different proposal about what kind ofexpertise matters in jurisprudence. Rather than locating expertise inone population that has the “right” intuitions, this viewunderstands conflicts in intuitions and the complex relationship amonglay, philosophical, and legal concepts as sites worthy ofphilosophical exploration. This view begins by noting that, in manylegal systems, ordinary people also create law—contributingdirectly to the production of legal content as jurors deciding mixedquestions or as statutory interpreters. Moreover, any legal expert(whether a legal philosopher or legal official) was once an ordinaryperson, and it is plausible that they bring some aspects of thatordinary experience and understanding to law. There are similarconsiderations about legal language: Law is clearly written andexpressed with technical language, but it is not a foreign language toits ordinary citizens. Legal notions—cause, consent,reasonableness, intent—share names with similar notions that weuse in ordinary life, whose legal meanings are not entirely distinctfrom their ordinary ones. Empirical study of ordinary notions andordinary people can help disentangle the ordinary from the legal(Tobia 2023: 2507).

On this proposal, experimental jurisprudence plays amethodological role in jurisprudence. The question aboutwhether law should adopt or even focus on the understanding of anordinary person, legal philosopher, legal academic, or legal officialisitself a worthy jurisprudential question. In many legaldomains, there are plausible reasons to consider both ordinary andexpert understandings of law. The relevant expertise of legalphilosophers includes generating theories and hypotheses about whatconnects or distinguishes legal notions from corresponding ordinaryones. Philosophers have long theorized about the relationship betweenordinary notions (e.g., ordinary cause) and legal ones (e.g., legalcause) and informed legal argument with thought experiments aboutordinary notions. This perspective sees experimental jurisprudence asplaying a similar methodological role as these traditional methods ofphilosophical analysis: Conducting experiments about how laypeople,philosophers, and legal officials understand law can unearth importantfacts for improved jurisprudential debate. These facts do notgenerallyresolve jurisprudential debates, but they providenew and sharper insights for philosophical analysis of law.

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• [MPC]Model Penal Code Annotated
• Sebok, Anthony, 2021, “Beware of Strangers BearingGifts”,JOTWELL, 14 January 2021, ReviewingKnobe and Shapiro 2021. [Sebok 2021 available online]
• Strohmaier, Niek, 2017, “Introducing: Experimental Jurisprudence”,Leiden Law Blog, 1 December 2017.

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Acknowledgments

The authors wish to thank Brian Flanagan, Lucas Miotto, and NoelStruchiner.