Experimental Legal Philosophy: The Concept of Law Revisited

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The research project aims to introduce experimental philosophy into legal philosophy. Experimental philosophy is, first of all, a methodological approach in philosophy, employing experimental methods developed in the psychological and cognitive sciences for the investigation of philosophical questions and theories. Mostly, experimental philosophy studies rational ‘intuitions’ that feature in philosophical armchair reasoning, in particular, intuitions on philosophical issues elicited in thought experiments. In this context, experiments are employed to explore the content of rational ‘intuitions’ (so-called ‘positive project’) as well as to test their epistemological reliability (so-called ‘negative project’). A third, methodologically naturalist strand of experimental philosophy directly studies mental states and processes of interest in philosophical reasoning. The experimental approach has yet been explored in a range of diverse philosophical areas but is widely absent in legal philosophy. The proposed project aims to remedy this omission and to provide a new perspective on the philosophy of law by exploring central issues of it from an experimental philosophy perspective. We will begin with a stage dedicated to theorizing about promising issues and approaches in legal philosophy with regard to their amenability to experimental investigations, and we will develop adequate experimental paradigms. We will then apply these paradigms to three successive experimental projects: The first set of experiments will explore these paradigms as applied to the classic dispute between legal positivism and natural law, with an emphasis on the rational ‘intuitions’ involved. The second set of experiments will then probe the impact of moral-psychological mechanisms on legal cognition, drawing on two central paradigms in moral psychology (moral foundations theory and moral dyad theory). Such influences will finally be explored on a more concrete level in the third set of experiments, addressing whether moral psychological findings about the moralization of physical harm can be applied to the phenomenon of immaterial harm widespread in legal cognition (e.g., with regard to freedom of expression or antidiscrimination). The most relevant findings will be explored cross-culturally.