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The Fact-Value Gap

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The main goal of empirical legal research is usually to give insight into how the law works in practice (law in action as opposed to law in the books). One of the biggest yet exciting challenges in conducting empirical legal research is whether and how to “translate” the empirical findings into possible implications for the legal domain. The mere fact that something works – or does not work – in a certain way (“is”) does not necessarily mean that it should work that way – or that it should be changed (“ought”). It is important to realize that empirical data do not automatically yield normative conclusions. If you want to draw normative conclusions based on empirical data, you need to bridge the fact-value gap.

Before addressing how you could do so, we note that terms “fact” and “gap” that are often used in the fact-value gap discussion should be nuanced. Firstly, results of empirical legal research can provide important insights into how the law works in practice within a certain legal area, but they may not always reflect reality. Because these results are often based on a sample rather than an entire population, a certain margin of error is taken into account (for example, you may have obtained these results due to chance). In addition, the questions you ask or the setting within which you conduct your study are often a simplified representation of reality. Secondly, although “facts” and values are two different things, they cannot always be strictly separated. Hence, strictly speaking, we are dealing with empirical findings rather than facts, and with a distinction rather than a gap.

Although the fact-value gap manifests itself differently in each study, there are some general guidelines that can be helpful when bridging it. First, make sure that you provide clarity about where the reporting of the empirical findings ends and normative interpretation of the data begins. Second, when drawing normative conclusions, make sure to discuss relevant arguments and consider possible counterarguments as well. Empirical information can be part of the argumentation in your line of reasoning. Third, and arguably most importantly, some normative questions simply cannot be answered with empirical research. Doctrinal legal research and legal theoretical research, for example, may lend themselves better for answering these types of questions.

Resources

  • L.F.M. Ansems, Procedural Justice on Trial. A Critical test of Perceived Procedural Justice From the Perspective of Criminal Defendants (diss. Utrecht), Alblasserdam: Ridderprint 2021, Chapter 6.

  • W. Been en S. Taekema, ‘De verstrengeling van feiten en waarden: onjuist of onvermijdelijk?’, in: E.T. Feteris, Gewogen oordelen: Essays over argumentatie en recht, Den Haag: Boom Juridische Uitgevers, p. 327-337.

  • T. Bouwman, ‘Empirisch-juridisch onderzoek en de sprong van feit naar norm’, NJB 2020/815, afl. 13, p. 888-893.

  • I. Giesen, ‘The use and incorporation of extralegal insights in legal reasoning’, Utrecht Law Review 2015/11, p. 1-18.

  • F. Leeuw, ’Empirical legal research: The gap between facts and values and legal academic training’, Utrecht Law Review, 2015/11, p. 19-33.

  • S. Taekema, B. van Klink, en W. de Been (Eds.), Facts and norms in law: Interdisciplinary reflections on legal method, Cheltenham: Edward Elgar, p. 242-262.